### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 48384

- 0

- II Petitioner,

v. DARCUS DEWAYNE ALLEN, UNPUBLISHED OPINION Respondent,
M ELNICK , J.

— At issue in this case is whether the trial court properly dismissed the State’s allegations of aggravating circumstances under chapter 10.95 RCW on double jeopardy grounds. The State charged Darcus DeWayne Allen with four counts of premeditated murder in the first degree and alleged two statutory aggravating circumstances under RCW 10.95.020 (aggravating circumstances). 1 It also filed a special notice seeking the death penalty. The jury unanimously found that the State had not proved the aggravating circumstances beyond a reasonable doubt, but found Allen guilty of the murder charges.

1 The S tate also filed aggravating circumstances under former RCW 9.94A.535 (2010) , which, if found by a jury beyond a reasonable doubt, would allow the trial court to impose an exceptional sentence. Those aggravating circumstances are not at issue in this discretionary review. Filed Washington State Court of Appeals Division Two October 25, 201748384

- 0

- II

2

After the Supreme Court reversed Allen’s convictions, State v. Allen , 182 Wn.2d 364, 341 P.3d 268 (2015), the State decided not to refile the special death notice; however, it did file the same aggravating circumstances it had previously filed and which the jury found had not been proven beyond a reasonable d oubt. 2 The trial court granted Allen’s motion to dismiss the aggravating circumstances and subsequently denied the State’s motion for reconsideration. We granted the State’s motion for discretionary review and affirm the trial court.
FACTS The State charged Allen with four counts of premeditated murder in the first degree with aggravating circumstances. A jury found Allen guilty of the murder charges, but found that the State had not proven the aggravating circumstances beyond a reasonable doubt. The trial court individually polled e ach juror. It asked each juror, “Is this your verdict?” and “Is it the verdict of the jury?” Clerk’s Papers ( CP ) at 148. Every juror answered in the affirmative. The trial court imposed an exceptional sentence above the standard range for the crime of premeditated murder in the first degree. Allen appealed. His convictions were reversed based on prosecutorial misconduct. Allen , 182 Wn.2d at 3 87

. On remand, the State did not seek the death penalty, but it did r eallege the same aggravating circumstances that t he jury had previously found had not been proved beyond a reasonable doubt.

2 If a jury found that the S tate had proved either of the aggravating circumstances beyond a reasonable doubt, the defendant would be sentenced “to life imprisonment without possibility of release or parole.” RCW 10.95.030. This sentence exceeds the statutory punishment for premedi tated murder in the first degree. RCW 9A.32.030 , .040.48384

- 0

- II

3

Allen filed a motion to dismiss the aggravating circumstances based on double jeopardy. The trial court, relying primarily on Alleyne v. United States , ___ U.S. ___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), concluded that the aggravating circumstances constituted elements of the crime and that Alleyne altered the prior line of cases in Washington as to aggravating circumstances . The court concluded that because the prior jury found that the State had not proved the aggravating circumstances beyond a reasonable doubt, double jeopardy barred the State from retrying them. The court entered an order granting Allen’s motion to dism iss the aggravating factors. The trial court then denied the State’s motion for reconsideration. We granted the State’s motion for discretionary review as to whether or not the prohibition against double jeopardy barred the State from retrying Allen o n the aggravating circumstances. Because the jury’s unanimous finding on the aggravating circumstances is an acquittal on them,
we conclude the S tate cannot retry Allen on them. We affirm the trial court.
ANALYSIS 3 A number of separate issues are prese nted in this case. Although they are intertwined, each must be analyzed separately. The ultimate issue we must decide is whether the jury’s affirmative finding that the State had not proved the aggravating circumstances beyond a reasonable doubt is

an ac quittal and double jeopardy bars a retrial on them. We conclude it was an acquittal on the aggravating circumstances and double jeopardy bars a retrial on them.

3 Allen additionally argues that collateral estoppel applies to bar the S tate from relitigating the aggravating factors under RCW 10.95.020. However, this argument was not raised below and we did not accept review of it; therefore, we will not address it.48384

- 0

- II

4

I. A GGRAVATING C IRCUMSTANCES A RE N OT E LEMENTS The State argues that the trial court erred by treating the aggravating circumstances in RCW 10.95.020 as elements of the charged crime because it is well

- settled Washington law that aggravating circumstances relate to sentencing and are not elements of the offense. We agree with the State that t he aggravating circumstances are not elements of the crime of premeditated murder in the first degree with aggravating circumstances. However, because they are the functional equivalent of elements, we disagree with the State that the trial court erred by treating them as such. Chapter 10.95 RCW sets forth the procedures and penalties for premeditated murder in the first degree with aggravating circumstances. If the State charges a defendant with premeditated murder in the first degree, it can also file one or more statutory aggravatin g circumstances. State v. Thomas , 166 Wn.2d 380, 387, 208 P.3d 1107, 1111 (2009)

. If aggravating factors are filed, a jury 4 determines whether the State has proved both the substantive crime and the aggravating circumstance(s). RCW 10.95.050. Only if the jury finds that the State has proven both the substantive crime and the aggravating circumstance(s) beyond a reasonable dou bt at the guilt phase will a special sentencing hearing occur. RCW 10.95.050. At the sentencing hearing, the jury will determine whether there are sufficient mitigating circumstances to merit leniency. Depending on the answer, a defendant is sentenced e ither to death or to life imprisonment without the possibility of release or parole. RCW 10.95.030, .080. If the jury does not find aggravating factors, the defendant is sentenced for the crime of premeditated murder in the first degree.

4 We are aware that under RCW 10.95.050(2) , a jury may be waived at the court’s discretion with the consent of the defendant and the S tate. We use the term jury and not fact finder for simplicity.48384

- 0

- II

5

Premeditated murder in the first degree with aggravating circumstances is not a crime in and of itself. The crime is premeditated murder in the first degree, which is accompanied by statutory aggravators. 5 State v. Roberts , 142 Wn.2d 471, 501, 14 P.3d 713 (2000).
A ggravating circumstances are “ not elements of the crime, but t hey are ‘aggravation of penalty’ factors.” State v. Brett , 126 Wn.2d 136, 154, 892 P.2d 29 (1995) (quoting State v. Kincaid , 103 Wn.2d 304, 307, 692 P.2d 823 (1985)). They are sentence enhancer s used to “‘ increase the statutory maximum sentence from life with the possibility of parole to life without the possibility of parole or the death penalty. ’ ” State v. Thomas , 166 Wn.2d 380, 387

- 88, 208 P.3d 1107 (2009) (quoting State v. Yates , 161 Wn.2d 714, 758, 168 P.3d 359 (2007)) . In Yates , the court rejected the argument that murder in the first degree was a lesser included offense of murder in the first degree with aggravating circumstances. 161 Wn.2d at 761.
II. A GGRAVATING C IRCUMSTANCES A RE T HE F UNCTIONAL E QUIVALENT OF E LEMENTS Our courts have consistently ruled that aggravating circumstances enhancing premeditated murder in the first degree are not elements. Kincaid , 103 Wn.2d at 307

- 10

. But the United States Supreme Court has held in numerou s cases that factors which raise the penalty for a crime, other than a fact of conviction, are the functional equivalent of elements. In other words, they are akin to elements, must be submitted to a jury, and must be proven beyond a reasonable doubt. Ap prendi v. New Jersey , 530 U.S. 466, 489, 133 S. Ct. 2 348 , 1 47 L. Ed. 2d 435 (2000). None of these cases changed the statutory process utilized in chapter 10.95 RCW. None of these cases involved double jeopardy challenges. But they are necessary to the a nalysis of why the jury’s factual finding on the aggravating circumstances bars a retrial on them.

5 Some of the confusion about this issue may arise because the crime is statutorily called “aggravated first degree murder

. ” RCW 10.95.02048384

- 0

- II

6

In Apprendi , the Court held that any fact that increases the statutory maximum penalty for the charged crime must be proved to a jury beyond a reasonable d oubt. 530 U.S. at 489. The Court recognized that this type of sentence enhancement “is the functional equivalent of an element” because it increased the sentence beyond the statutory maximum. Apprendi , 530 U.S. at 494 n.19. Apprendi is based on the S ixth Amendment right to a jury trial and the Fourteenth Amendment right to due process. Apprendi acknowledged the “constitutionally novel and elusive distinction between ‘elements’ and ‘sentencing factors.’” 530 U.S. at 494. It recognized that “the
rele vant inquiry is one not of form, but of effect.” Apprendi , 530 U.S. at 494. Alleyne reaffirmed these rules. 133 S. Ct. at 2156.
In Ring v. Arizona , 536 U.S. 584, 609, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), the Court held that aggravating factors ne cessary to impose the death penalty must be submitted to a jury. In quoting Apprendi , 530 U.S. at 494 n.19, the Court held that because Arizona’s enumerated aggravating factors operate as “‘the functional equivalent of an element of a greater offense,’” a jury must decide them. Ring , 536 U.S. at 609. The Court has also applied the general rule that a jury must hear facts that increase the sentence, other than prior convictions, in various situations , including plea bargains, Blakely v. Washington , 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), sentencing guidelines, United States v. Booker , 543 U.S. 220, 125 S. Ct. 738, 160 L.Ed.2d 621 (2005), criminal fines, Southern Union Co. v. United States , 567 U.S. ___, 132 S. Ct. 2344, 183 L. Ed. 2d 318 (2012), mandatory minimums, Alleyne , [ 133 S. Ct. at 2166 ] and, in Ring , 536 U.S. 584, 122 S. Ct. 2428, 153 L.Ed.2d 556, capital punishment. Hurst v. Florida , ___ U.S. ___, 136 S. Ct. 616, 621, 193 L. Ed. 2d 504 (2016).48384

- 0

- II

7

Washington courts have recognized these changes in a variety of contexts, but in particular in a capital case. In State v. McEnroe , the court held that an aggravating circumstance in a death penalty case becomes the functional equivalent of an element of the crime. 181 Wn.2d. 375, 38 2 , 333 P.3d 402 (2014). Based on the foregoing, we conclude that Washington’s statutory sentencing scheme under chapter 10.95 RCW remains unchanged. The United States Supreme Court was cognizant of the fact tha t different sentencing schemes exist in different jurisdictions. None of these cases has overruled or altered our prior jurisprudence in this area. Premeditated murder in the first degree remains a separate crime from premeditated murder in the first deg ree with aggravating circumstances. The aggravating circumstances are the functional equivalent of elements which must be submitted to the jury and must be proven by the State beyond a reasonable doubt.
III. D OUBLE J EOPARDY The State additionally argue s that Washington courts have held that double jeopardy protections are not applicable to noncapital sentencing proceedings. Because those cases are factually distinguished from this case, we disagree with this broad assertion. Instead, we conclude that double jeopardy prohibits retrial on aggravating circumstances that the jury determined the State had not proved beyond a reasonable doubt. “The double jeopardy clauses of the Fifth Amendment and [article 1, section 9 of the Washington Constitution] prote ct a defendant against multiple punishments for the same offense.” State v. Calle , 125 Wn.2d 769, 772, 888 P.2d 155 (1995). Double jeopardy involves questions of law which we review de novo. State v. Womac , 160 Wn.2d 643, 649, 160 P.3d 40 (2007). “‘ The double jeopardy doctrine protects a criminal defendant from being (1) prosecuted a second time for the same offense after acquittal, (2) prosecuted a second time for the same offense after48384

- 0

- II

8

conviction, and (3) punished multiple times for the same offense. ’ ” State v. Fuller , 185 Wn.2d 30,
33

- 34, 367 P.3d 1057 (2016) (quoting State v. Linton , 156 Wn.2d 777, 783, 132 P.3d 127 (2006) )

. Here, we are dealing with the first prong and deciding whether a unanimous jury verdict finding that the State had not proved aggravated circumstances, the functional equivalent of elements, beyond a reasonable doubt is an acquittal of those aggravating circumstances. A brief survey of case law sheds light on the answer.
In Bullington v. Missouri , a jury found Bullington guilty of capital murder in the guilt phase, but returned a sentence of less than death in the penalty phase. 451 U.S. 430, 101 S. Ct. 185, 68 L. Ed. 2d 270 (1981)

. After a reversal of the conviction, the State once again sought the death penalty. Bullington , 451 U.S. at 436. The Court held that double jeopardy barred a retrial on the death penalty because the jury’s sentence in th e first case meant it had acquitted the defendant of the factors necessary to impose death. Bullington , 451 U.S. at 445

- 46. The Court based its holding on the fact that the penalty phase required trial

- like procedures. Bullington , 451 U.S. at 445

- 46. He re the jury’s finding meant that it had acquitted Allen of the circumstances necessary to impose a sentence of either death or life without the possibility of parole or early release.
In Monge v. California , the Court explained its earlier decision in Bu llington : When the State announced its intention to seek the death penalty again, the defendant alleged a double jeopardy violation. We determined that the first jury’s deliberations bore the “hallmarks of the trial on guilt or innocence,” because the jur y was presented with a choice between two alternatives together with standards to guide their decision, the prosecution undertook the burden of establishing facts beyond a reasonable doubt, and the evidence was introduced in a separate proceeding that form ally resembled a trial. In light of the jury’s binary determination and the heightened procedural protections, we found the proceeding distinct from traditional sentencing, in which “it is impossible to conclude that a sentence less than the statutory max imum “constitute[s] a decision to the effect that the government has failed to prove its case.”48384

- 0

- II

9

524 U.S. 721, 730

- 31, 118 S. Ct. 2246, 141 L. Ed. 2d 615 (1998) (quoting Bullington , 451 U.S. at 439, 443) (internal case citations omitted) (internal quotatio ns omitted)

. We are mindful that in Bullington , the jury found the defendant guilty of capital murder, but here, the jury did not find Allen guilty of capital murder. It found him guilty of premeditated murder in the first degree. As a result, Allen was not eligible for a sentence of death or life without parole or early release. The jury’s finding had all the hallmarks of a trial.
In Arizona v. Rumsey , the jury convicted the defendant of armed robbery and murder in the first degree. 467 U.S. 203, 205 , 104 S. Ct. 230, 81 L. Ed. 2d 164 (1984). The trial judge found no presence of aggravating circumstances and sentenced the defendant to life in prison for a minimum of 25 years. Rumsey , 467 U.S. at 205

- 06. The Arizona Supreme Court set aside the senten ce and remanded the case for resentencing. Rumsey , 467 U.S. at 207. Ultimately, the United States Supreme Court held that the trial court’s findings of no aggravating circumstances constituted an acquittal. Rumsey , 467 U.S. at 212. The defendant could not be sentenced to death. Rumsey , 467 U.S. at 212. The facts Rumsey are similar to the ones we are presented with here. Additionally, in Monge , the Court refused to find a double jeopardy violation where, the state court on appeal , held that insuffici ent evidence supported the prior conviction upon which the trial court relied in sentencing the defendant under California’s three strikes law. 524 U.S. at
7 3 1. In holding that the case could be remanded for a new sentencing hearing where the state could offer evidence on the prior conviction, the Court distinguished this case from one involving the death penalty : The penalty phase of a capital trial is undertaken to assess the gravity of a particular offense and to determine whether it warrants the ult imate punishment; it is in many respects a continuation of the trial on guilt or innocence of capital murder. “ It is of vital importance ” that the decisions made in that context “ be, and appear to be, based on reason rather than caprice or emotion. ”48384

- 0

- II

10

Monge , 524 U.S. at 731

- 32 (quoting Gardner v. Florida , 430 U.S. 349 , 358, 97 S. Ct. 1197, 51 L. Ed

. 2d 393 (1977)). Monge’s charges were litigated as a noncapital case. Monge , 524 U.S. 721. They involved California’s three strikes law. In contrast, Allen’s jury determined that the State had not proved the aggravating circumstances beyond a reasonable doubt in a capital case where it sought the death penalty. The fact the St ate now seeks to make it a noncapital case cannot erase this fact. Because of Washington’s statutory scheme under chapter 10.95 RCW, the penalty or sentencing hearing only comes into play if the jury finds the defendant guilty of premeditated murder in th e first degree with aggravating circumstances. It mandates that a jury first must determine whether the State has proved the functional equivalent of the elements beyond a reasonable doubt.
In Sattazahn v. Pennsylvania , the jury found the defendant gui lty of murder in the guilt phase of the trial. 537 U.S. 101, 103, 123 S. Ct. 732, 736, 154 L. Ed. 2d 588 (2003). The case then proceeded to the penalty phase where the state alleged one aggravating factor and the defendant presented mitigating evidence. Sattazahn , 537 U.S. at 103

- 04. After the jury was hopelessly deadlocked, the trial court dismissed the jury and sentenced the defendant to life imprisonment per the existing law. Sattazahn , 537 U.S. at 10 4

- 0 5. The defendant appealed and the state appel late court reversed his murder conviction. Sattazahn , 537 U.S. at 105. On remand, the State again filed a death penalty notice. Sattazahn , 537 U.S. at 105. It alleged two aggravating factors. Sattazahn , 537 U.S. at 105. The trial court denied the def endant’s motion to disallow the State from filing the aggravating factors. Sattazahn , 537 U.S. at 105. The Court held that no double jeopardy violation occurred because:48384

- 0

- II

11

[T]he touchstone for double

- jeopardy protection in capital

- sentencing proceedings is whether there has been an “acquittal.” Petitioner here cannot establish that the jury or the court “acquitted” him during his first capital

- sentencing proceeding. As to the jury: The verdict form returned by the foreman stated that the jury deadlocked 9

- to

- 3 on whether to impose the death penalty; it made no findings with respect to the alleged aggravating circumstance. That result

- or more appropriately, that non

result

- cannot fairly be called an acquittal “based on findings sufficient to establish le gal entitlement to the life sentence. ” Sattazahn , 537 U.S. at 109 (quoting Rumsey , 467 U.S. at 211). Sattazahn is factually distinguishable from our case. There, the jury did not unanimously make a finding as to the aggravating circumstance. In our case, Allen’s jury made that finding. We also note that based on the jury’s “finding” in Sattazahn , the matter proceeded to the penalty or sentencing phase. Sattazahn , 537 U.S. at 105. In our case, Allen’s jury never entered the sentencing phase; it fou nd that the State had not proved the aggravating factors beyond a reasonable doubt. Therefore, under Washington’s scheme, no sentencing phase occurred because Allen’s jury acquitted him of the aggravating factors; rather, Allen was sentenced for the crime of premeditated murder in the first degree. The Sattazahn Court reasoned in dicta that, In the post

- Ring world, the Double Jeopardy Clause can, and must, apply to some capital

- sentencing proceedings consistent with the text of the Fifth Amendment. If a jury unanimously concludes that a State has failed to meet its burden of proving the existence of one or more aggravating circumstances, double

- jeopardy protections attach to that ‘acquittal’ on the offense of ‘murder plus aggravating circumstance(s). [ 6 ] Sattazahn , 537 U.S. at 112. In Allen’s case, the jury did “acquit” him of the aggravating factors.

6 The fact that the Court also opined that this situation would arise when the crime of murder differed from the crime of aggravated murder is not relevant to this discussion.48384

- 0

- II

12

These cases lead us to the conclusion that once a jury made the finding in Allen’s death penalty case that the State had not proved aggravating circums tances beyond a reasonable doubt, it acquitted him of those aggravating circumstances. Our decision today does not conflict with State v. Benn , where a retrial occurred based on an aggravated circumstance for which the jury had not returned a verdict. 1 61 Wn.2d 256, 165 P.3d 1232 (2007). In the first trial, the jury left the answer blank. The jury made no finding as to the aggravating circumstance. Benn , 161 Wn.2d at 264. It was not an implied acquittal. Benn , 161 Wn.2d at 264. “A jury’s failure to find the existence of an aggravating factor does not constitute an “acquittal” of that factor for double jeopardy purposes.” Benn , 161 Wn2d at 264. Here Allen’s jury did not fail to find the existence of an aggravating circumstance. It found no
existen ce of an aggravated circumstance. Therefore, double jeopardy prohibits the retrial of the aggravating factors for which the jury found the State had not proved beyond a reasonable doubt. Although no Washington case is directly on point, Oregon has addres sed the issue indirectly. It observed that, “[U]nder Apprendi, a jury determination of a sentencing enhancement factor is now part and parcel of a jury trial and we now must view that determination similarly to a jury’s decision to acquit or convict.” Or egon v. Sawatzky , 339 Or. 689, 696, 125 P.3d 722 (2005) (resentencing hearing on “enhanced” sentence before jury after judge initially made determination). We agree with the court in Sawatzky

. CONCLUSION In the capital case against Allen, the jury affi rmatively and unanimously found that the State had not proved beyond a reasonable doubt any aggravating circumstances. These aggravating circumstances are the functional equivalent of elements of the crime. The jury’s48384

- 0

- II

13

finding is an acquittal of the aggravating circumstances for double jeopardy purposes. The State cannot retry Allen on the aggravating circumstances for which a jury found a lack of proof. We affirm the trial court. 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.

Melnick, J.
We concur:

Johanson, P. J.

Sutton, J.