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# r~~1 IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, Petitioner,
v. JOSEPH T. McENROE and MICHELE KRISTEN ANDERSON, Respondents. NO. 89881-2 ENBANC
Filed 

### SEP 04 2014

GORDON McCLOUD, J.-The State charged Joseph McEnroe and Michele Andersonwithaggravated first degree murder and seeks a sentence ofdeath for each ofthem. InJanuary ofthis year, roughly five and ahalfyears afterthe State filed its notices ofintent to seek the death penalty, the trial court ruled that the absence of "'sufficient mitigating circumstances to merit leniency,"' RCW 10.95.060(4), is an essential element ofthe crime ofcapital murder in Washington and, hence, that the State must allege the absence ofsufficient mitigating circumstances inthe charging information. The trial court therefore gave the State two weeks to amend each charging informationto allege insufficientmitigating circumstances. The order said

1No. 89881-2 that ifthe State failed to amend the information, the court would entertain a defense motion to dismiss the State's notices ofintentto seek the death penalty. The State seeks reversal ofthat order. It also asks that the case be reassigned to a different trialjudge on remand. We reverse the trial court's order compelling the State to amend each information or face dismissal ofthe notice of special sentencing proceeding. We deny the State's motion for reassignment. FACTS In late December 2007, Joseph McEnroe and Michele Anderson (defendants)
were charged with six counts ofaggravated first degree murder. The State filed a notice ofintent to seek the deathpenalty in each case. Under Washington's death penalty statute, the State must file a notice ofits intent to seek the death penalty (the "notice of special sentencing proceeding") "whenthere is reasonto believethatthere are notsufficientmitigating circumstances to merit leniency." RCW 10.95.040(2)(1). Thatnotice mustbe filed within 30 days after arraignment unless the court grants an extension. RCW 10.95.040(2)(3). In this case, thetrial courtgranted several extensions andthe State didnotfile thenotice until October 2008. InNovember 2012, the defendants movedto dismiss the deathpenaltynotices
on the grounds that the prosecutor had violated their constitutional rights when, in
2No. 89881-2 

### determining whetherto seekthe deathpenalty, he had consideredthe strength ofthe State's evidence. The trial court granted that motion, and the State sought interlocutory reviewby this court. The State also moved inthe trial courtto stay the order until five days after this court issued its decision on the motion for discretionary review. The trial court denied that motion, but the Supreme Court commissioner stayedthe effectofthetrial court's orderpendingreviewbythis court. We ultimately granted review and reversed the trial court. 

### State v. McEnroe, 179 Wn.2d 32, 309 P.3d 428 (2013). On October 21, 2013, McEnroe moved the trial court to "preclude the possibility ofa death sentence in this case" on the grounds that the State had failed to allege an essential element inthe charging information. Clerk's Papers (CP) at 1- 15. Anderson joined in McEnroe's motion. Under Washington's death penalty statute, the death penalty cannot be imposed for aggravated murder unless thejury is asked the following question: '"Having in mind the crime ofwhich the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?'" RCW 10.95.060(4). If thejury unanimously answers yes, then the penalty is death. Id.; 

### RCW 10.95.030. Ifthe jury does not unanimously answer yes, then the penalty is life without the possibility ofparole. Id. 

### According to the defendants, this makes the absence of "'sufficient mitigating circumstances to merit leniency'" an essential element of

3No. 89881-2 

### capital murder in Washington and means that it mustbe charged inthe information. RCW 10.95.060(4). The defendants characterized their motion as "based on" the United States Supreme Court's recent decision inAlleyne v. United States,_

### U.S._, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (20 13), the latest in the line of cases beginning with Apprendi v. New Jersey, 

### 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Apprendi

### held that for purposes ofthe Sixth Amendment right to ajurytrial and the Fourteenth Amendment right to due process, the prosecution must prove to ajury, beyond a reasonable doubt, any fact necessary to increase the statutory maximum penalty for the charged crime. Id. 

### at 492; U.S. CONST. amends. VI, XIV. The Apprendi 

### decision held that a "'sentencing factor,"' such as an aggravating circumstance, becomes the "functional equivalent ofan element" when it triggers the availability ofa penalty greater than that authorized for the commission ofthe underlying crime. 530 U.S. at 494 n.19. For many years the United States Supreme Court distinguished, for purposes ofthe Apprendi

### rule, between facts that increased the maximum potential sentence and facts that increased only the mandatory minimum sentence. Harris 

### v. United States, 

### 536 U.S. 545, 122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002). ButAlleyne

### rejected that distinction and heldthat for purposes oftheApprendi

### rule, there is no difference between facts that increase the statutory maximum 

### and facts that increase the
4No. 89881-2 

### mandatory minimum. 

### 133 S. Ct. at 2160-63. The prosecution must prove both to the fact finder beyond a reasonable doubt. Id. Alleyne's 

### holding on that point is irrelevant to this case. If the jury unanimously answers yes to the question in RCW 10.95.060(4), then the death penalty is both a statutory maximum and a statutory mandatory minimum-itis the only penalty that the trial court can impose. But the defendants also argued that Alleyne 

### expanded the definition of an "essential element," which this court has long required the State to allege in the charging information. 1 

### CP at 14 ("Alleyne
... clearly
...holds that necessary nonstatutory elements are not to be distinguished from statutory elements.") The defense concluded that the absence ofsufficient mitigating circumstances to merit leniency must now be considered an essential element and, hence, that it must now be charged in the information. Inresponse to the defendants' motion, the trial court embarked on an in-depth examination ofthe interaction betweenAlleyne 

### and the relevantprecedent from this court. On December 5, 2013, the trial court asked the parties to complete a form it called the Court's Requests for Admission. Id. 

### at 276-77. This novel document consisted of seven questions with blanks indicating that the parties should supply

1See, e.g., State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991).
5No. 89881-2 

### '"yes' or 'no"' answers. 

### Id. The questions asked whether the "elements" offirst degree murder and aggravated first degree murder are set forth in certain statutes; whetherthe penalties for those crimes are 240 months to life and life withoutparole, respectively; and whether, after ajuryfinds beyond areasonable doubtthatthere are not sufficient mitigating circumstances to merit leniency, a court must impose a sentence ofdeath on a defendant charged with aggravated first degree murder. 

### Id. The State objectedto the Court'sRequests for Admission. CP at 101. Instead of supplying yes-or-no answers to the court's questions, the State submitted a lengthy briefreframing those questions and arguing that theApprendi

### rule does not apply to the ultimate decision in a death penalty case. The State argued that the decisionto impose the deathpenalty is basically amoral, ratherthan apurely factual, determination and that the decision therefore falls outside the scope oftheApprendi 

### rule. The trial court accepted the State'sbriefoverthe defendants' objection. Then, on January 2, 2014, the trial court entered a written ruling directed to the defendants' "Motion Based on Alleyne." CP at 122-29. The ruling was not really an order; it did not "preclude the possibility of the death penalty" as the defendants had requested, nor did it impose any other relief. It 

### just expressed agreement with the defendants' theory that "the absence ofsufficient mitigation is
an element ofthe crime for which death is the mandatory punishment." CP at 129. Both parties then filed additional motions: the State sought reconsideration ofthe

6No. 89881-2 theory adopted by the court, and the defense sought to preclude the State from seeking death sentences. On January 31, the courtdeniedbothparties' motions. CP 233-47. Critically, it also gave the State until February 17, 2014, to "amendthe Information consistent withthis Court'sruling" orrelinquishthe opportunityto pursue a special sentencing proceeding. CP at 246-47. The State filed a motion for discretionary review ofthat January 31 order in this court and a motion to consolidate the defendants' cases for review. We granted both motions. State v. McEnroe, 179 Wn.2d 1022, 320 P.3d 719 (2014). Our commissioner granted the State's emergency motion for a stay ofthe trial court's orders pending further order ofthis court. ANALYSIS I. The trial court erred in ruling thatthe absence ofsufficientmitigating circumstances to merit leniency must be alleged in the charging information The trial court ruled, as a matter of law, that the absence of sufficient mitigating circumstances to merit leniency is an element ofthe crime and that the State must allegethatelement inthe informationin orderto seek a sentence ofdeath. We review such questions oflaw de novo. State v. Womac, 160 Wn.2d 643, 649, 160 p.3d 40 (2007).

7No. 89881-2 

### As noted above, Apprendi 

### holds that any fact, such as the existence of an aggravating circumstance that exposes the defendant to a sentence greater than the statutory maximum for the crime charged, is the "functional equivalent of an element" for righttojurytrial and standard ofproofpurposes. 530 U.S. at 494 n.19. InAlleyne, 

### the United States Supreme Court held thattheApprendi

### rule also applies to facts that raise the mandatory minimum sentence. 133 S. Ct. at 2160-63. Under both cases, such facts are the "functional equivalent[s]" ofelements. Apprendi, 

### 530 U.S. at 494 n.19. Alleyne 

### also called such facts actual "elements," as opposed to "functional equivalent[s]," for purposes ofthe Sixth and Fourteenth Amendment questions at issue in that case. 133 S. Ct. at 2162 (omitting any reference to an element's "functional equivalent"). Basedonthis language, the defendants arguethatinWashington, all "essential elements ofa crime must be alleged in the information" and thatpost-Alleyne, 

### these "essential elements" include the absence of sufficient mitigating circumstances to merit leniency in a capital case. Am. Resp't's Br. at 19, 27 (boldface and capitalization omitted). The State disagrees with both arguments. First, it argues that the insufficient mitigation finding is not a factual determination subject to the Apprendi 

### rule. The State points out that the jury can consider even nonfactual, moral issues, such as

8No. 89881-2
mercy and leniency, in mitigation. This is certainly true under both state2 and federal3 law. The State also relies on federal cases interpreting the Federal Death Penalty Act (FDPA) of 1994, 18 U.S.C. 

### § 3592(c); the State is correct that these
cases all holdthatthejury's decisionto impose the deathpenaltyunderthe PDPA is
a "weighing"processratherthana factual determination, and is thereforenot subject to theApprendi line ofcases or the reasonable doubt standard.4 The defendants do not really respond to the first argument. They counter the second one by arguing that we cannot analogize Washington's death penalty statute to the FDPA: Washington's statute, unlike the FDPA, is not a "weighing" statute; the jury's insufficient mitigation decision is characterized as a sufficiency-of-evidence

2 In re Pers. Restraint ofYates, 177 Wn.2d 1, 53-54,296 P.3d 872 (2013) ("[T]he statutory question, fairly read, does not require anexus between mitigating circumstances and the crime. The term 'mitigating circumstance' is broadly defined to include 'a fact about either the offense or about the defendant which in fairness or in mercy may be considered as extenuating or reducing the degree ofmoral culpability or whichjustifies a sentence ofless than death, although it does not justifYor excuse the offense.'"). 3 Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978) (plurality) (under Eighth and Fourteenth Amendments to the United States Constitution a jury must "not be precluded from considering, as a mitigatingfactor, any aspect of a defendant's character orrecord
...that the defendantproffers as abasis for a sentence less than death"). 4 E.g., United States v. Gabrion, 719 F.3d 511, 532-33 (6th Cir. 2013) (Apprendi and the reasonable doubt standard apply only to factual findings, not to the weighing of aggravators and mitigators), cert. denied, _U.S._, 134 S. Ct. 1934 (2014); UnitedStates v. Fields, 483 F.3d 313, 345-46 (5th Cir. 2007) (same).
9No. 89881-2 determination (whichis characteristic offactual questions); 5 and inWashington, the jury's insufficient mitigation finding is reviewed for sufficiency ofthe evidence (a standard also characteristic offactual questions). 6 Accordingly, they contendthatin Washington, thejury's decision to impose the deathpenalty is treated like any other "fact" necessary to conviction. Second, the State arguesthat evenif'"not sufficientmitigating circumstances to merit leniency"' were a factual determination, theApprendi rule deals with only the rights to trial by jury and proof beyond a reasonable doubt and not with the required contents ofstate charging documents. RCW 10.95.060(4). In support of this argument, the State relies primarily onState v. Siers, 174 Wn.2d 269, 274 P.3d 358 (2012). ItassertsthatunderSiers, the dueprocess clause guarantees a defendant notice ofevery "aggravating circumstance[]" (that is, every functional equivalent of

5 Compare RCW 10.95.130(2)(a) ("With regard to the sentence review [in a death penalty case], the supreme court ofWashington shall determine
... [w]hether there was sufficient evidence to justify the affirmative finding to the question posed by RCW 10.95.060(4)."), with 18 U.S.C. § 3595(c)(2) (requiring reviewing court in FDPA case to consider three things: (1) whether the death sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor; (2) whether the evidence supports the special finding ofthe existence oftherequired aggravating factor (butnotthe determination that aggravating factors outweigh mitigating factors); and (3) whether the proceedings involved any other legal error requiring reversal ofthe death sentence).
6 E.g., State v. Stenson, 132 Wn.2d 668, 757, 940 P.2d 1239 (1997) ("The test to review the sufficiency ofthe evidence [ofinsufficient mitigating circumstances to merit leniency in death penalty case] is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier offact couldhave found suffidentevidence tojustify that conclusion beyond a reasonable doubt.").
10No. 89881-2

an element) alleged, but that such notice need not necessarily be given in the charging information itself. Reply Br. ofPet'r at 12-13. The defense counters that all elements mustbe alleged inthe charging instrument itselfunderAlleyne. The State certainly has the better of the charging instrument argument. Neither the Sixth nor the Fourteenth Amendment-the constitutional provisions at issue in Apprendi and Alleyne-requires the states to use any particular form of charging instrument. See Apprendi, 530 U.S. at 477 n.3. The Fifth Amendment to the United States Constitution's guaranty ofindictment by grandjury is not binding
on the states. Id. Hence, states can use their own charging procedures and documents (bounded, ofcourse, by other constitutional guaranties, such as notice, which are not at issue here). The death penalty notices in the two cases before us complied with the state statutory charging requirements ofRCW 10.95.040. Each notice allegedthat "there [is] reasonto believethatthere are not sufficientmitigating circumstances to merit leniency." 7 RCW 10.95.040(2)(1). While the due process clauserequiresthe statesto give criminaldefendants constitutionally adequatenotice of"the essential elements ofthe crimes charged," Siers heldthatthis notice neednot necessarily be afforded in the charging information. 174 Wn.2d at 271, 275-77.

7 In response to questions from this court at oral argument, the State filed amotion requesting to supplement the clerk's papers by designating the notice of special death penalty proceedings filed in each defendant's case. We grant that motion.

11No. 89881-2 Neitherpartyhas arguedthatSiers shouldbe overruledonthis state lawpoint. Thus, the Statecanprovide suchnoticeinthenotice ofspecial sentencingproceedingunder RCW 1 0.95.040. Becausewe holdthatthe notice ofspecial sentencingproceeding afforded the defendants statutorilyrequirednotice thatthe State intendedto prove the absence of sufficient mitigating circumstances to merit leniency, we do not reach the question ofwhetherthe insufficientmitigation finding is a factual determination for purposes ofApprendi. Under state law, it must already be presented to thejury and proved beyond a reasonable doubt. RCW 10.95.060(4), .080(1). Onthe other hand, under state law, the decision maker can consider mercy, leniency, and other nonfactual matters. We hold only that the notice ofspecial sentencing proceeding satisfied all applicable constitutional and state charging requirements. The trial court therefore erred when it orderedthe State to amendthe information orrelinquishthe chance to have a special sentencingproceeding. II. The State's request for reassignment on remand is denied Forthe first time on appeal, the State requestedthatthese cases be reassigned to a differentjudge on remand. The State contends that reassignment is necessary to preserve the appearance offairness and because "it can reasonably be expected thatthe trial courtwill have difficulty putting aside its stronglyheldviews regarding its erroneous findings." Opening Br. ofPet'r at 41.
12No. 89881-2 The State's motion is based onthe trialjudge's conductofmore than sixyears of pretrial proceedings, its treatment of numerous motions, its discretionary decisions on legal issues not currently before this court ontheirmerits, and its views
on several disputed, complex legal matters. Yet the State never asked Judge Ramsdell to recuse himself. Generally, a party seeking a newjudge files a motion for recusal in the trial court. 

### See, e.g., State v. Chamberlin, 161 Wn.2d 30, 40-41, 162 P.3d 389 (2007). The recusal rule itselfis based on the assumption that the challengedjudge gets to evaluatethe statedgrounds for recusal inthe first instance. CJC Canon2.11(A) ("[a] judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned"). This recusal procedure allows the parties to develop a record adequate to determine whether "thejudge's impartiality might reasonably be questioned." 

### Id. A party may sometimes seek reassignment for the first time on appeal, as the State didhere. Butthatis generally done where the issue raised on appeal is also the basis for the reassignment request. Thus, reassignment may be sought for the first time on appeal where, for example, the trialjudgewill exercise discretion on remand regarding the very issue that triggered the appeal and has already been exposed to

13No. 89881-2 prohibited information,8 expressed an opmwn as to the merits,9 or otherwise prejudged the issue. This remedy has limited availability: even where a trialjudge has expressed a strong opinion as to the matter appealed, reassignment is generally not available as an appellate remedy if the appellate court's decision effectively limits the trial court's discretion onremand. 10 This case does not involve any exceptionto the rule that a motionto recuse is generally the proper way to seek a new trialjudge. Ofthe State's seven asserted grounds for reassignment,11 six are entirely unrelatedto theAlleyne/Apprendi issue

8 State v. Harrison, 148 Wn.2d 550, 559, 61 P.3d 1104 (2003); In re Ellis, 356 F.3d 1198, 1211 (9th Cir. 2004); State v. Madry, 8Wn. App. 61, 70, 504 P.2d 1156 (1972). 9 State v. Sledge, 133 Wn.2d 828, 846, 947 P.2d 1199 (1997); United States v. Quach, 302 F.3d 1096, 1103-04 (9th Cir. 2002); State v. Aguilar-Rivera, 83 Wn. App. 199, 203,920P.2d 623 (1996);In re Custody ofR., 88 Wn. App. 746, 763, 947 P.2d 745 (1997); State v. Talley, 83 Wn. App. 750, 763, 923 P.2d 721 (1996), aff'don other grounds, 134 Wn.2d 176 (1998). 10 E.g., United States v. WolfChild, 699 F.3d 1082, 1102-03 (9th Cir. 2012) (trial court's previously expressed view that defendant "categorically presented a danger to all children" not grounds for reassignmentwhere appellate opinion "gives sufficient guidance that, should [the trial judge] determine it is necessary to impose new conditions [of supervised release] he will impose only suitably narrow conditions that will comply with the applicable legal requirements set forth above"). 11 The State asserted two ofthese grounds for reassignment for the first time in its reply brief. (We note that RAP 10.3(c) does not contemplate that parties will raise new arguments in a reply brief.) In response, the defendants filed a motion to supplement the designation of clerk's papers with four "documents relevant to refuting new allegations made by the State
... regarding 'Reassignment Upon Remand,"' Mot. to Suppl. Resp'ts' Designation of Clerk's Papers at 1, and one document that was "overlooked in [the defendants'] original designation ofclerk'spapers (Sub. No. 587),"Resp'ts' Reply onMot. to Suppl. Resp'ts' Designation ofClerk's Papers. The State filed a motion in opposition. 14No. 89881-2
raised inthis appeal 12 andnoneprovesthatJudgeRamsdellhasprejudgedthe merits ofthis case orthe propriety ofanyparticular sentence. 13 The one asserted ground for reassignment that does relate to the Allenye/Apprendi issue appealed does not warrant reassignment. With respect to that asserted ground, the State argues that reassignment is warranted because, in ruling on theAlleyne/Apprendi issue, Judge Ramsdell "ignoredbindingprecedent."

Because we hold that none ofthe State's allegations, even iftrue, is a proper basis for reassignment as an appellate remedy, we deny the defendants' motion to supplement the clerk's papers as to the four documents relevant to that issue. We grant the defendants' motion to supplementthe clerk's papers as to the documentthatwas overlooked (Sub. No. 587). We note that that document was appended to the State's motion for discretionary review, that it has therefore been before this court for several months, and that we have given it full consideration in this opinion. 12 The State asserts the following six grounds for reassignmentthat are unrelated to theAlleyne/ Apprendiissue: (1) Judge Ramsdell dismissed the notices ofspecial sentencing proceeding in January 2013 for reasons ultimately rejected by this court; (2) after dismissing the notices ofspecial sentencing proceeding in 2013, Judge Ramsdell refused to stay that orderuntil five days afterthis courtruled onthe State's motion for discretionary review; (3) Judge Ramsdell directed the parties to fill outthe documenttitled "Request for Admissions"; (4) Judge Ramsdell cited Albert Camus when he opined that it was ironic that, ifthe strength ofthe State's evidence is relevant to the decision to seek the death penalty, a defendant who confesses is more likely to face that penalty; (5) that Judge Ramsdell unreasonably delayed the proceedings by allowing defendant Anderson's lawyers to withdraw early on; and (6) that Judge Ramsdell incorrectly interpreted King County Local General Rule 15. Opening Br. ofPet'r at 44-49. 13 We acknowledge that the State believes Judge Ramsdell harbors a bias against--

- the death penalty. But none of the State's allegations indicate that Judge Ramsdell's personal views-whatever they might be-led him to prejudge the merits ofthe State's case or the propriety ofany sentence.

15No. 89881-2 

### Opening Br. ofPet'r at 44. This argument fails for three reasons. First, legal errors alone do not warrant reassignment. See Liteky v. United States, 

### 510 U.S. 540, 555, 114 S. Ct. 1147, 127 L. 

### Ed. 2d 474 (1994) ("Almost invariably, [erroneous rulings]
are proper grounds for appeal, not for recusal."). Second (and relatedly), our decision today leaves no discretion in the hands of the trial court as to the Alleyne/ Apprendi 

### issue appealed. Thus, as to that issue, there is simply no basis for the State's assertion that Judge Ramsdell will have trouble "putting aside [his] strongly held views." Opening Br. ofPet'r at 41. Even ifJudge Ramsdell holds "strongly held views" about the contents of charging documents, he is bound on remand by this court's decision. 

### Id. Finally,the State's assertionthatJudgeRamsdell "ignored

### bindingprecedent"
on this issue is not correct. 

### Id. at 44 (emphasis added). The binding precedent to which the State refers is Siers, 

### 167 Wn.2d 269, 14 

### and, as this opinion makes clear,
we agree with the State's interpretation ofthat case. But Siers 

### arguably stands in tension with our earlier decision in State v. Goodman, 

### upon which the trial court relied. See 

### 150 Wn.2d 774, 784, 83 P.3d 410 (2004) ("A charging document is constitutionally sufficient under the sixth amendment to the United States Constitution and article I, section 22 of our constitution only if it includes all

14 See Opening Br. ofPet'r at 38 (faulting trial court for declining to follow Siers, asserting that it did so "because it is a 5-4 decision").
16No. 89881-2 'essential elements' of the cnme, regardless of whether they are statutory or nonstatutory." (footnotes omitted)). Moreover, the State did not develop the theory that Siers was the dispositive case until it filed its motion for reconsideration in the trial court. Before it filed that motion, the State never treated Siers as controlling. Instead, it calledthe case "instructive," VerbatimTr. ofProceedings (Dec. 18, 2013) at 26, and argued that it "reinforce[d] the State'spositionhere," CP at 95. This is understandable, given the evolution of our post-Apprendi opinions. We have yet to fully weaveApprendi into the fabric ofour case law, and some of
our cases distinguish in broad terms between "elements" and "sentence enhancers," Statev. Yates, 161 Wn.2d 714, 757-58, 168 P.3d 359 (2007), orbetween "elements" and "'aggravation ofpenalty' factors," State v. Kincaid, 103 Wn.2d 304, 307, 692 P.2d 823 (1985). To the extent that these distinctions appear in cases addressing state charging documents, they are consistent with Apprendi's result. But the reasoning underlying these distinctions derives from pre-Apprendi case law. 15 Compare, e.g., Siers, 174 Wn.2d at 282 (asserting, without qualification, that "an aggravating factor is not the functional equivalent of an essential element"), with Alleyne, 133 S. Ct. at 2155 ("[a]ny fact that, by law, increasesthe penalty for a crime

15 In particular, it derives from the "essential elements" rule articulated in Kjorsvik, 117 Wn.2d at 97.
17No. 89881-2 

### is an 'element' that must be submitted to the jury and found beyond a reasonable doubt"). The trial-court's reading ofthese cases is not evidence ofwillful disregard of precedent. It

### may result in legal error, but an error oflaw is certainly not evidence ofbias. Thus, the general rule requiringparties to raiserecusal issues inthe trial court, rather than in this court, applies to most ofthe State's requests for reassignment. The remaining ground for seeking reassignment is a legal error, and a legal error alone does not warrant reassignment. We deny the State's request for reassignment
on remand. We do so, however, without prejudice to the State's ability to file a motion for recusal in the trial court. That is the proper place to raise some ofthese highly fact-dependent claims in the first instance. CONCLUSION 

### We hold that the notice of special sentencing proceeding afforded the defendants constitutionally and statutorily adequate notice thatthe State intendedto prove the absence ofsufficientmitigating circumstances to merit leniency. The trial court's order directing the State to amend the charging information is therefore reversed. The State's request for reassignment on remand is denied without prejudice to the State's ability to bring amotion for recusal in the trial court.

18No. 89881-2



### WE CONCUR:

19

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