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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 0 4 2014 

GORDON McCLOUD, J.-The State charged Joseph McEnroe and Michele 

Anderson with aggravated first degree murder and seeks a sentence of death for each 

of them. In January of this year, roughly five and a half years after the State filed its 

notices of intent 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 of the crime of capital murder in Washington and, hence, that the 

State must allege the absence of sufficient mitigating circumstances in the charging 

information. The trial court therefore gave the State two weeks to amend each 

charging information to allege insufficient mitigating circumstances. The order said 

1 
No. 89881-2 

that if the State failed to amend the information, the court would entertain a defense 

motion to dismiss the State's notices of intent to seek the death penalty. 

The State seeks reversal of that order. It also asks that the case be reassigned 

to a different trial judge on remand. 

We reverse the trial court's order compelling the State to amend each 

information or face dismissal of the 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 of aggravated first degree murder. The State filed a 

notice of intent to seek the death penalty in each case. 

Under Washington's death penalty statute, the State must file a notice of its 

intent to seek the death penalty (the "notice of special sentencing proceeding") 

"when there is reason to believe that there are not sufficient mitigating circumstances 

to merit leniency." RCW 10.95.040(2)(1). That notice must be filed within 30 days 

after arraignment unless the court grants an extension. RCW 10.95.040(2)(3). In 

this case, the trial court granted several extensions and the State did not file the notice 

until October 2008. 

In November 2012, the defendants moved to dismiss the death penalty notices 

on the grounds that the prosecutor had violated their constitutional rights when, in 

2 
No. 89881-2 

determining whether to seek the death penalty, he had considered the strength of the 

State's evidence. The trial court granted that motion, and the State sought 

interlocutory review by this court. The State also moved in the trial court to 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 stayed the effect of the trial court's order pending review by this 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 of a death sentence in this case" on the grounds that the State had failed 

to allege an essential element in the 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 the jury 

is asked the following question: '"Having in mind the crime of which 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 

the jury unanimously answers yes, then the penalty is death. Id.; RCW 1 0.95.030. 

If the jury does not unanimously answer yes, then the penalty is life without the 

possibility of parole. Id. According to the defendants, this makes the absence of 

"'sufficient mitigating circumstances to merit leniency'" an essential element of 

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No. 89881-2 

capital murder in Washington and means that it must be charged in the information. 

RCW 10.95.060(4). 

The defendants characterized their motion as "based on" the United States 

Supreme Court's recent decision in Alleyne 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 of the Sixth Amendment right to a jury trial and the 

Fourteenth Amendment right to due process, the prosecution must prove to a jury, 

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 of an element" when it triggers 

the availability of a penalty greater than that authorized for the commission of the 

underlying crime. 530 U.S. at 494 n.19. 

For many years the United States Supreme Court distinguished, for purposes 

of the 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). But Alleyne rejected 

that distinction and held that for purposes of the Apprendi rule, there is no difference 

between facts that increase the statutory maximum and facts that increase the 

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No. 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-it is 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 of sufficient mitigating circumstances to merit 

leniency must now be considered an essential element and, hence, that it must now 

be charged in the information. 

In response to the defendants' motion, the trial court embarked on an in-depth 

examination of the interaction between Alleyne and the relevant precedent 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 

1 See, e.g., State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991). 

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No. 89881-2 

'"yes' or 'no"' answers. Id. The questions asked whether the "elements" of first 

degree murder and aggravated first degree murder are set forth in certain statutes; 

whether the penalties for those crimes are 240 months to life and life without parole, 

respectively; and whether, after a jury finds beyond a reasonable doubt that there are 

not sufficient mitigating circumstances to merit leniency, a court must impose a 

sentence of death on a defendant charged with aggravated first degree murder. I d. 

The State objected to the Court's Requests for Admission. CP at 101. Instead 

of supplying yes-or-no answers to the court's questions, the State submitted a 

lengthy brief reframing those questions and arguing that the Apprendi rule does not 

apply to the ultimate decision in a death penalty case. The State argued that the 

decision to impose the death penalty is basically a moral, rather than a purely factual, 

determination and that the decision therefore falls outside the scope of the Apprendi 

rule. The trial court accepted the State's brief over the 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 of sufficient mitigation is 

an element of the crime for which death is the mandatory punishment." CP at 129. 

Both parties then filed additional motions: the State sought reconsideration of the 

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No. 89881-2 

theory adopted by the court, and the defense sought to preclude the State from 

seeking death sentences. 

On January 31, the court denied both parties' motions. CP 233-47. Critically, 

it also gave the State until February 17, 2014, to "amend the Information consistent 

with this Court's ruling" or relinquish the opportunity to pursue a special sentencing 

proceeding. CP at 246-4 7. 

The State filed a motion for discretionary review of that 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 of the trial court's 

orders pending further order of this court. 

ANALYSIS 

I. The trial court erred in ruling that the absence of sufficient mitigating 

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 of the crime and that the 

State must allege that element in the information in order to seek a sentence of death. 

We review such questions of law de novo. State v. Womac, 160 Wn.2d 643, 649, 

160 p .3d 40 (2007). 

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No. 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 right to jury trial and standard of proof purposes. 530 U.S. at 494 n.19. 

In Alleyne, the United States Supreme Court held that the Apprendi 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]" of elements. Apprendi, 530 

U.S. at 494 n.19. Alleyne also called such facts actual "elements," as opposed to 

"functional equivalent[s]," for purposes of the Sixth and Fourteenth Amendment 

questions at issue in that case. 133 S. Ct. at 2162 (omitting any reference to an 

element's "functional equivalent"). 

Based on this language, the defendants argue that in Washington, all "essential 

elements of a crime must be alleged in the information" and that post-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 

8 
No. 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 hold that the jury's decision to impose the death penalty under the PDP A is 

a "weighing" process rather than a factual determination, and is therefore not subject 

to the Apprendi line of cases 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 of Yates, 177 Wn.2d 1, 53-54,296 P.3d 872 (2013) ("[T]he 

statutory question, fairly read, does not require a nexus 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 of moral culpability or which justifies a 

sentence of less than death, although it does not justifY or 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 mitigating factor, any aspect of a 

defendant's character or record ... that the defendant proffers as a basis 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); United States 

v. Fields, 483 F.3d 313, 345-46 (5th Cir. 2007) (same). 

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No. 89881-2 

determination (which is characteristic of factual questions); 5 and in Washington, the 

jury's insufficient mitigation finding is reviewed for sufficiency of the evidence (a 

standard also characteristic of factual questions). 6 Accordingly, they contend that in 

Washington, the jury's decision to impose the death penalty is treated like any other 

"fact" necessary to conviction. 

Second, the State argues that even if'"not sufficient mitigating circumstances 

to merit leniency"' were a factual determination, the Apprendi rule deals with only 

the rights to trial by jury and proof beyond a reasonable doubt and not with the 

required contents of state charging documents. RCW 10.95.060(4). In support of 

this argument, the State relies primarily on State v. Siers, 174 Wn.2d 269, 274 P.3d 

358 (2012). It asserts that under Siers, the due process clause guarantees a defendant 

notice of every "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 of Washington 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 of the existence of the required aggravating factor (but not the determination 

that aggravating factors outweigh mitigating factors); and (3) whether the proceedings 

involved any other legal error requiring reversal of the death sentence). 

6 E.g., State v. Stenson, 132 Wn.2d 668, 757, 940 P.2d 1239 (1997) ("The test to 

review the sufficiency of the evidence [of insufficient 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 of fact could have found suffident evidence 

to justify that conclusion beyond a reasonable doubt."). 

10 
No. 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 must be alleged in the charging instrument itself under Alleyne. 

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 of indictment by grand jury is not binding 

on the states. Id. Hence, states can use their own charging procedures and 

documents (bounded, of course, 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 of RCW 1 0.95.040. Each 

notice alleged that "there [is] reason to believe that there are not sufficient mitigating 

circumstances to merit leniency."7 RCW 10.95.040(2)(1). While the due process 

clause requires the states to give criminal defendants constitutionally adequate notice 

of"the essential elements of the crimes charged," Siers held that this notice need not 

necessarily be afforded in the charging information. 17 4 Wn.2d at 271, 27 5-77. 

7 In response to questions from this court at oral argument, the State filed a motion 

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. 

11 
No. 89881-2 

Neither party has argued that Siers should be overruled on this state law point. Thus, 

the State can provide such notice in the notice of special sentencing proceeding under 

RCW 1 0.95.040. 

Because we hold that the notice of special sentencing proceeding afforded the 

defendants statutorily required notice that the State intended to prove the absence of 

sufficient mitigating circumstances to merit leniency, we do not reach the question 

of whether the insufficient mitigation finding is a factual determination for purposes 

of Apprendi. Under state law, it must already be presented to the jury and proved 

beyond a reasonable doubt. RCW 10.95.060(4), .080(1). On the other hand, under 

state law, the decision maker can consider mercy, leniency, and other nonfactual 

matters. We hold only that the notice of special sentencing proceeding satisfied all 

applicable constitutional and state charging requirements. The trial court therefore 

erred when it ordered the State to amend the information or relinquish the chance to 

have a special sentencing proceeding. 

II. The State's request for reassignment on remand is denied 

For the first time on appeal, the State requested that these cases be reassigned 

to a different judge on remand. The State contends that reassignment is necessary 

to preserve the appearance of fairness and because "it can reasonably be expected 

that the trial court will have difficulty putting aside its strongly held views regarding 

its erroneous findings." Opening Br. ofPet'r at 41. 

12 
No. 89881-2 

The State's motion is based on the trial judge's conduct of more than six years 

of pretrial proceedings, its treatment of numerous motions, its discretionary 

decisions on legal issues not currently before this court on their merits, and its views 

on several disputed, complex legal matters. Yet the State never asked Judge 

Ramsdell to recuse himself. 

Generally, a party seeking a new judge 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 itself is based on the assumption that the challenged judge gets to 

evaluate the stated grounds for recusal in the first instance. CJC Canon 2.11(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 "the judge's impartiality 

might reasonably be questioned." Id. 

A party may sometimes seek reassignment for the first time on appeal, as the 

State did here. But that is 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 trial judge will exercise discretion on remand 

regarding the very issue that triggered the appeal and has already been exposed to 

13 
No. 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 trial judge 

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 on remand. 10 

This case does not involve any exception to the rule that a motion to recuse is 

generally the proper way to seek a new trial judge. Of the State's seven asserted 

grounds for reassignment, 11 six are entirely unrelated to the Alleyne/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, 8 Wn. 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, 

203,920 P.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'd on other grounds, 134 

Wn.2d 176 (1998). 

10 E.g., United States v. Wolf Child, 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 reassignment where 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 of these 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 of clerk's papers (Sub. No. 587)," Resp'ts' Reply on Mot. 

to Suppl. Resp'ts' Designation of Clerk's Papers. The State filed a motion in opposition. 

14 
No. 89881-2 

raised in this appeal 12 and none proves that Judge Ramsdell has prejudged the merits 

of this case or the propriety of any particular 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 the Alleyne/Apprendi issue, Judge Ramsdell "ignored binding precedent." 

Because we hold that none of the State's allegations, even if true, 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 supplement the clerk's papers as to the document that was 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 reassignment that are unrelated to 

the Alleyne/ Apprendi issue: (1) Judge Ramsdell dismissed the notices of special sentencing 

proceeding in January 2013 for reasons ultimately rejected by this court; (2) after 

dismissing the notices of special sentencing proceeding in 2013, Judge Ramsdell refused 

to stay that order until five days after this court ruled on the State's motion for discretionary 

review; (3) Judge Ramsdell directed the parties to fill out the document titled "Request for 

Admissions"; ( 4) Judge Ramsdell cited Albert Camus when he opined that it was ironic 

that, if the strength of the 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. of Pet'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 of the State's 

case or the propriety of any sentence. 

15 
No. 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. of Pet'r at 41. Even if Judge 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 assertion that Judge Ramsdell "ignored binding precedent" 

on this issue is not correct. I d. 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 of that 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. of Pet'r at 38 (faulting trial court for declining to follow Siers, 

asserting that it did so "because it is a 5-4 decision"). 

16 
No. 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 called the case "instructive," Verbatim Tr. ofProceedings (Dec. 18, 2013) 

at 26, and argued that it "reinforce[d] the State's position here," CP at 95. 

This is understandable, given the evolution of our post-Apprendi opinions. 

We have yet to fully weave Apprendi into the fabric of our case law, and some of 

our cases distinguish in broad terms between "elements" and "sentence enhancers," 

State v. Yates, 161 Wn.2d 714, 757-58, 168 P.3d 359 (2007), or between "elements" 

and "'aggravation of penalty' 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, increases the penalty for a crime 

15 In particular, it derives from the "essential elements" rule articulated in Kjorsvik, 

117 Wn.2d at 97. 

17 
No. 89881-2 

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

doubt"). 

The trial-court's reading of these cases is not evidence of willful disregard of 

precedent. It may result in legal error, but an error of law is certainly not evidence 

of bias. 

Thus, the general rule requiring parties to raise recusal issues in the trial court, 

rather than in this court, applies to most of the 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 of these 

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 that the State intended to 

prove the absence of sufficient mitigating 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 a motion for recusal in the trial court. 

18 
No. 89881-2 

WE CONCUR: 

19 

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