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CHtEFJUSTKB This opinion Was filed for record

SUSAN L. CARLSON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON STATE OF WASHINGTON,

Petitioner,

V. DARCUS DEWAYNE ALLEN^

Respondent. No. 95454-2

EN BANC

Filed: DEC 1 3 2018



### YU,J. — This case asks whether the aggravating circumstances listed in 

### ROW 10.95.020 are "elements" ofthe offense ofaggravated first degree murder for purposes ofthe Fifth Amendment's double jeopardy clause. U.S.Const. amend.V. Respondent Dorcus Dewayne Allen was convicted offour counts of 

### first degree murder but acquitted oftwo ROW 10.95.020 aggravating circumstances on each count. We later vacated Allen's convictions and remanded 

### for a new trial. State v. Allen, 182 Wn.2d 364,387,341 P.3d 268 (2015){Allen I).

The case caption spells the defendant's first name as Darcus while the defendant's briefing spells his first name as Dorcus. There has been no motion to amend the case caption, but we use the spelling from the defendant's briefing in the body ofthis opinion.State V. Allen,No. 95454-2

The question before us now is whether Allen can be tried a second time on the RCW 10.95.020 aggravating circumstances. The trial court ruled that he cannot, 

### and the Court ofAppeals agreed. We hold that retrial on the aggravating circumstances is barred by double jeopardy principles and thus affirm.'

Factual Background and Procedural History In November 2009,Maurice Clemmons shot and killed four Lakewood police officers. Allen drove Clemmons to and from the crime scene. The factual 

### details are recounted in Allen I and need not be repeated here. Id. at 369-70. 

### Allen was charged as an accomplice with four counts ofaggravated murder 

### in the first degree pursuant to RCW 10.95.020,which provides that "[a]person is guilty ofaggravated first degree murder,a class A felony,ifhe or she commits first 

### degree murder as defined by RCW 9A.32.030(l)(a). . . and one or more of[14 listed] aggravating circumstances exist." The information charged Allen with two aggravating circumstances for each count: 

### (1)that the victim was a law enforcement officer who was performing [his or her]official duties at the time ofthe act resulting in death,and 

### the victim was known or reasonably should have been laiown by the defendant to be such at the time ofthe killing; and/or (2)that there was more than one victim and the murders were part ofa common 

### scheme or plan or the result ofa single act ofthe defendant; contrary to RCW 10.95.020(1)and 10.95.020(10).
' Allen also argues that collateral estoppel provides an alternative basis for holding that he cannot be retried on the aggravating circumstances. We decline to consider this argument because it was not raised below. RAP 2.5(a).State V. Allen,No. 95454-2



### Clerk's Papers (CP)at 1-3.^ Ifthe jury found that either one ofthe aggravating circumstances existed,the minimum penalty for each first degree murder 

### conviction would increase from a term ofyears to mandatory life imprisonment 

### without the possibility ofrelease or parole.^ Former RCW 10.95.030(1)(1993). At the close oftrial, the jury was instructed to separately consider each of 

### the four counts ofmurder in the first degree and to return a verdict ofguilty or not guilty on each count. The jury was also given special verdict forms related to each 

### count and was instructed to fill these forms out only ifit found Allen guilty ofthe related murder counts. The special verdict forms read as follows:



### We,the jury,having found the defendant guilty ofpremeditated 

### Murder in the First Degree on verdict form [I-IV],return a special verdict by answering as follows as to Count [TIV]: 

### QUESTION #1: Has the State proven the existence ofthe following aggravating circumstance beyond a reasonable doubt? 

### The victim was a law enforcement officer who was performing his or her official duties at the time ofthe act resulting in death and the victim was known or reasonably should have been 

### known by the defendant to be such at the time ofthe killing. ANSWER#1: (Write "yes" or "no." "Yes"requires unanimous agreement)

^ On each count,Allen was also charged with a firearm enhancement and an additional aggravating circumstance pursuant to RCW 9.94A.535(3)(v). These additional aggravators are not before us. 

### ^ Aggravated first degree murder pursuantto RCW 10.95.020 was also punishable by death,but the State did not seek the death penalty. Former RCW 10.95.030(2)(1993).State V. Allen,No. 95454-2



### QUESTION #2: Has the State proven the existence ofthe following aggravating circumstance beyond a reasonable doubt? There was more than one person murdered and the murders were part ofa common scheme or plan or the result ofa single act ofthe person. 

### ANSWER#2: (Write "yes" or "no." "Yes"requires unanimous agreement) CP at 35-38. The presiding juror wrote "no" in the blank next to each answer and 

### circled "no." Id. After reading each verdict and special verdict form into the 

### record,the trial courtpolled the jury individually,asking each juror,"Is this your verdict?" and "Is it the verdict ofthe jury?" Id. at 148-50. Each juror answered "yes"to each question. Id. Allen was sentenced to 420 years in prison. On review,this court vacated Allen's convictions due to prosecutorial misconduct and remanded for a new trial. Allen I, 182 Wn.2d at 387. On remand, 

### the State filed the same charges as in the first trial, including the same ROW 10.95.020 aggravating circumstances. The trial court granted Allen's motion to 

### dismiss the aggravating circumstances on double jeopardy grounds and denied the
State's motion for reconsideration. 

### The Court ofAppeals affirmed on discretionary interlocutory review, 

### holding that the "State cannot retry Allen on the aggravating circumstances for which a jury found a lack ofproof." State v. Allen, 1 Wn.App.2d 774,787,407State V. Allen,No. 95454-2

P.3d 1166 (2017). We granted the State's petition for review. State v. Allen, 190 Wn.2d 1007,414 P.3d 575 (2018).
Issues 

### A. Did the jury in Allen's first trial unanimously acquit him ofboth RCW 10.95.020 aggravating circumstances? B. IfAllen was acquitted on the aggravating circumstances,does the 

### prohibition on double jeopardy bar a retrial on those aggravating circumstances? Analysis 

### A. Any ambiguity as to whether the jury unanimously acquitted Allen ofthe 

### two aggravating circumstances was cured when the judge polled the jury Both the United States and Washington Constitutions prohibit successive prosecutions for an offense on which the defendant has been acquitted. U.S. 

### Const,amend.V;Wash.Const,art. I, § 9;Bravo-Fernandezv. United States, U-S. , 137 S. Ct. 352,357, 196 L.Ed. 2d 242 (2016);State v. Guzman Nunez, 174 Wn.2d 707,717 n.4, 285 P.3d 21 (2012). Before we can determine whether 

### Allen may be retried on the aggravating circumstances,we must determine whether he was acquitted ofthem at his first trial. The trial court and Court of Appeals determined that he was. We agree. 

### At the time ofAllen's trial, our precedent held that ifa jury did not 

### unanimously find that the State had proved an RCW 10.95.020 aggravating circumstance,the defendant was acquitted ofthat aggravating circumstance. StateState V. Allen,No. 95454-2

V. Goldberg, 149 Wn.2d 888, 894,72P.3d 1083 (2003). This "nonunanimity rule"
was later overruled in Guzman Nunez,which held that acquittal ofaggravating circumstances requires jury unanimity. 174 Wn.2d at 718-19. But Guzman Nunez
was decided after Allen's trial was completed. Therefore, in accordance with thencontrolling precedent,the special verdict forms used in Allen's trial required jury unanimity only in order to answer "yes" on the aggravating circumstances. The special verdict forms did not require jury unanimity in order to answer "no." We must determine ifthe jury was nonetheless unanimous in finding that the State failed to prove the RCW 10.95.020 aggravating circumstances. Viewed in isolation,the "no" answer on the special verdict forms could be 

### interpreted in two ways:(a)the jury unanimously answered "no" or (b)the jury answered "no"because they could not unanimously answer "yes." However,when polled by the trial court, each juror affirmed that the "no"verdicts were his or her 

### own verdicts and the verdicts ofthe jury. Such individual jury polling is generally evidence ofjury unanimity. State v. Lamar, 180 Wn.2d 576,587,327 P.3d 46 (2014). 

### The State contends that the jurors might have interpreted both questions as asking the same thing: "Do you unanimously agree that this was not a unanimousState V, Allen,No. 95454-2



### 'yes'"?'^ We disagree. It is unlikely that an ordinary juror would be confused in this way,and there is no indication ofsuch confusion in the record. Thus,we ' affirm that the jury unanimously acquitted Allen ofboth aggravating circumstances
at his first trial. B. The prohibition on double jeopardy bars retrial ofthe RCW 10.95.020 aggravating circumstances Because Allen was unanimously acquitted ofthe RCW 10.95.020 aggravating circumstances at his first trial, we must now determine whether the 

### constitutional prohibition on double jeopardy bars a retrial on these aggravating circumstances. Outside ofthe death penalty context,the double jeopardy clause applies only to offenses,not sentences. Bullington v. Missouri,451 U.S. 430,438, 

### 101 S. Ct. 1852,68 L.Ed. 2d 270 (1981). Therefore,the critical question is whether the RCW 10.95.020 aggravating circumstances are "elements" ofthe 

### "offense" ofaggravated first degree murder in a noncapital case for double jeopardy purposes. 

### We have previously held that RCW 10.95.020 aggravating circumstances "are 'aggravation ofpenalty' factors which enhance the penalty for the offense, and are not elements ofa crime as such." State v. Kincaid, 103 Wn.2d 304,307,

Wash.Supreme Court oral argument,State v. Allen,No.95454-2(Oct. 18,2018),at 12 min.,41 sec.,video recording by TVW,Washington State's Public Affairs Network, http://www.tvw.org.State V. Allen,No. 95454-2



### 692 P.2d 823 (1985). As a result, we have previously stated that "double jeopardy does not apply to aggravating circumstances outside the death penalty context." Guzman Nunez, 174 Wn.2d at 717;see also State v. Kelley, 168 Wn.2d 72,80-82, 

### 226 P.3d 773 (2010). However,because "the legal underpinnings ofour precedent have changed" so significantly,we are compelled to revisit the issue in light of subsequent decisions ofthe United States Supreme Court. W.G. Clark Constr. Co. 

### V. Pac.Nw.Reg'l Council ofCarpenters, 180 Wn.2d 54,66,322 P.3d 1207 (2014). The United States Supreme Court has clarified that for Sixth Amendment purposes, "any fact that increases the mandatory minimum is an 'element'that 

### must be submitted to the jury." Alleyne v. United States, 570 U.S. 99, 103, 133 S. Ct. 2151, 186 L.Ed. 2d 314 (2013)(overruling//arm v. United States, 536 U.S. 

### 545, 122 S. Ct. 2406, 153 L.Ed. 2d 524 (2002)). A plurality ofthe Court has further indicated that there is "no principled reason to distinguish, in this context, 

### between what constitutes an offense for purposes ofthe Sixth Amendment's jurytrial guarantee and what constitutes an 'offence' for purposes ofthe Fifth Amendment's Double Jeopardy Clause." Sattazahn v. Pennsylvania,537 U.S. 101, 111, 123 S. Ct. 732, 154 L.Ed. 2d 588 (2003). 

### In light ofthis guidance and as explained below,we find no logical or legal basis for holding that the elements ofa crime for purposes ofthe Sixth Amendment's right to trial by jury are different from the elements ofa crime forState V. Allen,No. 95454-2

purposes ofthe Fifth Amendment's double jeopardy clause. For both purposes,a fact other than proofofa prior conviction that increases the mandatory minimum sentence is an element ofthe offense. Accordingly,we hold that RCW 10.95,020 aggravating circumstances,which increase the mandatory minimum penalty for first degree murder,are elements ofthe offense ofaggravated first degree murder for purposes ofthe double jeopardy clause. Therefore,Allen cannot be retried on the aggravating circumstances. 1. The original distinction between "sentencing factors" and "elements" for double jeopardy purposes paralleled the distinction between sentencing factors and elements for jury trial purposes "A criminal 'offence' is composed of'elements,' which are factual components that must be proved by the state beyond a reasonable doubt and 

### submitted (ifthe defendant so desires)to a jury." Monge v. California, 524 U.S. 721,737, 118 S. Ct. 2246, 141 L.Ed. 2d 615 (1998)(Scalia,J., dissenting). Under traditional principles ofAnglo-American criminal law,the elements ofan offense


### were defined in the same way for all constitutional purposes,including both the Fifth Amendment's prohibition on double jeopardy and the Sixth Amendment's right to a jury trial. Id. at 737-38. However,the question ofhow to define the elements ofan offense has generated a number ofdivided opinions from the United States Supreme Court over the last several decades. Alleyne, 570 U.S. at 105.State V. Allen,No. 95454-2

"The principal source ofdisagreement is the constitutional status ofa special sort offact known as a 'sentencing factor.'" Id. The term "sentencing factor" was first used by the United States Supreme Court in McMillan v. Pennsylvania,All U.S. 79, 86, 106 S. Ct. 2411,91 L.Ed. 2d 67 (1986),"to refer to facts that are not found by ajury but that can still increase the defendant's punishment." Alleyne, 570 U.S. at 105. The Court held that state legislatures may define facts as sentencing factors,rather than elements,and 

### further may provide that sentencing factors can be proved to a judge by a preponderance ofthe evidence,rather than being proved to a jury beyond a reasonable doubt. McMillan,All U.S. at 86,91. In doing so,however,the Court did not "budge from the position that (1)constitutional limits exist to States' 

### authority to define away facts necessary to constitute a criminal offense,and (2) that a state scheme that keeps from the jury facts that 'expos[e][defendants]to greater or additional punishment,' may raise serious constitutional concern." Apprendi v. New Jersey, 530 U.S. 466,486, 120 S. Ct. 2348, 147 L.Ed. 2d 435 

### (2000)(alterations in original)(citations omitted)(quoting McMillan,All U.S. at 85-88). 

### The difference between "elements" and "sentencing factors" was first set 

### forth in McMillan,a case concerning the right to a jury trial. Whether a particular fact is treated as an element or as a sentencing factor is also critical for double

10State V. Allen,No. 95454-2

jeopardy purposes because "[t]he Court generally has concluded . . .that the Double Jeopardy Clause imposes no absolute prohibition against the imposition of
a harsher sentence at retrial after a defendant has succeeded in having his original conviction set aside." Bullington,451 U.S. at 438. Thus,unlike elements ofan offense, sentencing factors (and sentences themselves)are generally not subject to the Fifth Amendment's double jeopardy clause. In Bullington,the United States Supreme Court "established a 'narrow exception' to the general rule" for the sentencing phase ofcapital murder trials. Mange,524 U.S. at 730. The Court reasoned that unlike a typical sentencing hearing,the sentencing phase ofa capital murder trial had "the hallmarks ofthe trial on guilt or innocence." Bullington,451 U.S. at 439. That is, rather than evidence being presented informally to a judge who had discretion to select a 

### sentence from a wide range authorized by statute,there was an adversarial process 

### that presented evidence to ajury,which was charged with making a binary choice based on proofbeyond a reasonable doubt. Id. at 438. 

### Later, in Mange,the United States Supreme Court declined to apply Bullington to proofofa prior conviction in a noncapital case,even ifsimilar sentencing procedures were used. 524 U.S. at 724-25. The Court determined that double jeopardy protections did not apply in that context because unlike in a capital case,the trial-like sentencing procedures used to prove prior convictions at

11State V. Allen,No. 95454-2

issue in Monge were a matter of"legislative grace,not constitutional command." Id. at 734. Thus,whether a fact could be treated as a sentencing factor for double jeopardy purposes was directly linked to the question ofwhether that fact was 

### constitutionally required to be treated as an element for jury trial purposes. It remains true that proofofa prior conviction does not require trial-like procedures or proofbeyond a reasonable doubt. Alleyne, 570 U.S. at 111 n.1. However,that is not the case for aggravating circumstances like those at issue here. 

### As discussed below,full jury trial procedures for RCW 10.95.020 aggravating circumstances are no longer a matter oflegislative grace. They are now a constitutional command. 2. Constitutional limits on "sentencing factors" for Sixth Amendment purposes have been refined over time 

### As noted above,state legislatures' authority to distinguish sentencing factors from elements for Sixth Amendment purposes is subject to constitutional 

### limitations. McMillan,477 U.S.at 86,91. The United States Supreme Court first addressed what those limitations are in Apprendi. 530 U.S. 466. The Court has 

### since clarified and refined its holdings,ultimately reaching the conclusion that a fact other than a prior conviction "that,by law,increases the penalty for a crime is an 'element'that must be submitted to the jury and found beyond a reasonable doubt." Alleyne, 570 U.S. at 103. Because an understanding ofthe way in which Sixth Amendment constitutional law has developed is necessary for our double

12State V. Allen,No. 95454-2

jeopardy analysis, we briefly discuss the line ofcases leading up to the Supreme Court's decision in Alleyne. The first such case,Apprendi,concerned New Jersey's hate crimes statute, which increased the maximum sentence for a crime ifa judge found by a preponderance ofthe evidence that the crime was committed '"with a purpose to intimidate an individual or group ofindividuals because ofrace, color,gender, 

### handicap,religion, sexual orientation or ethnicity.'" 530 U.S. at 469 (quoting 

### former N.J.Stat.Ann. § 2C:44-3(e)(1995)). Analyzing the common law history ofwhich facts must be proved to a jury,the United States Supreme Court determined that there was no "principled basis" for treating a fact that increased the maximum authorized term ofimprisonment differently from the elements constituting the base offense. Id. at 476. In so ruling,the Court reasoned that 

### "when the term 'sentence enhancement' is used to describe an increase beyond the maximum authorized statutory sentence,it is the functional equivalent ofan 

### element ofa greater offense than the one covered by the jury's guilty verdict." Id. at 494 n.l9 (emphasis added). Therefore,it must be submitted to a jury and proved beyond a reasonable doubt. The line ofcases that followed Apprendi applied its rule in a number of other contexts. See Ring v. Arizona 536 U.S. 584, 122 S. Ct. 2428, 153 L.Ed. 2d 556 (2002)(capital punishment);Blakely v. Washington,542 U.S. 296, 124 S. Ct.

13State V. Allen,No. 95454-2

2531, 159 L.Ed. 2d 403 (2004)(state sentencing guidelines); United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L.Ed. 2d 621 (2005)(federal sentencing guidelines); S. Union Co. v. United States, 567 U.S. 343, 132 S. Ct. 2344, 183 L.Ed. 2d 318 (2012)(criminal fines). However,state legislatures retained the authority to classify facts as sentencing factors ifthey increased only the minimum penalty, rather than the maximum penalty. Harris, 536 U.S. at 550. 

### Such sentencing factors could still be found by a judge by a preponderance ofthe evidence. Id. This changed with the Supreme Court's holding in Alleyne,which overruled 

### Harris and held that "there is no basis in principle or logic to distinguish facts that raise the maximum from those that increase the minimum." 570 U.S. at 116. 

### Alleyne also did away with ApprendVs "functional equivalent" language. "The essential point is that the aggravating fact produced a higher range,which,in turn, 

### conclusively indicates that the fact is an element ofa distinct and aggravated crime. It must,therefore,be submitted to the jury and found beyond a reasonable doubt." Id. at 115-16 (emphasis added). Thus,a "sentencing factor" is defined as a fact that can increase the sentence for a crime but does not need to be proved to ajury beyond a reasonable doubt, 

### such as proofofa prior conviction. Over time,the United States Supreme Court 

### has substantially limited the types offacts that may be designated as sentencing

14State V. Allen,No. 95454-2

factors for purposes ofthe Sixth Amendment's jury-trial right. In accordance with Alleyne,the legislature's designation ofa fact as a sentencing factor no longer controls. Now,a fact other than proofofa prior conviction that increases the minimum penalty authorized by law must be treated as an element,not a sentencing factor, for Sixth Amendment purposes. It is clear that the RCW 

### 10.95.020 aggravating circumstances are elements for Sixth Amendment purposes 

### because they are not limited to proofofa prior conviction and,by law,they increase the minimum penalty for first degree murder. 3. A plurality ofthe United States Supreme Court has stated that 

### elements are defined in the same way for purposes ofthe jury-trial right and the double jeopardy clause 

### As discussed above,the United States Supreme Court held in Motage that 

### double jeopardy principles do not apply to sentencing factors,such as proofof prior convictions, outside the context ofcapital murder cases. 524 U.S. at 734. 

### However,Monge was decided before Apprendi and subsequent cases in which the 

### constitutional limits ofwhich facts may be designated as sentencing factors for 

### Sixth Amendmentpurposes were clearly set forth. The Court has not yet issued a definitive holding as to whether these constitutional limits also apply to the distinction between sentencing factors and elements for purposes ofthe Fifth Amendment's prohibition on double jeopardy,but a plurality ofthe Court has indicated that they do.

15State V. Allen,No. 95454-2



### In Sattazahn v. Pennsylvania,the United States Supreme Court looked at the double jeopardy implications for sentencing factors after Apprendi,but it did not ultimately resolve the question. 537 U. S. 101. The defendant in Sattazahn was convicted offirst degree murder,but the sentencing jury hung on the existence of 

### an aggravating circumstance that would have authorized the death penalty. Id. at 103-05. The trial court therefore entered a life sentence in accordance with 

### Pennsylvania law. Id. at 105. The conviction was overturned,and on remand,the 

### Commonwealth again sought the death penalty on the basis ofthe same aggravator, as well as a second one introduced at the new trial. Id. The question before the Supreme Court was whether the Commonwealth was barred from retrying the aggravator or from seeking the death penalty on double jeopardy grounds. Id. 

### The majority held that a hung jury was not an acquittal on the aggravating circumstance,and therefore jeopardy had not terminated on the fact. Id. at 109. 

### Consequently,it could be realleged at the second trial as a basis for imposing the death penalty. Id. at 116. 

### Three ofthe five justices in the majority opined that ifthe jury had acquitted Sattazahn ofthe aggravating circumstance,double jeopardy principles would have 

### barred retrial ofthat fact.^ Id. at 112 (plurality opinion). The plurality stated, "We

^ The four dissenting justices would have held thatjeopardy terminated when the trial court entered the life sentence and therefore did not discuss how aggravating circumstances

16State V. Allen,No. 95454-2

can think ofno principled reason to distinguish, in this context,between what constitutes an offense for purposes ofthe Sixth Amendment's jury-trial guarantee and what constitutes an 'offence' for purposes ofthe Fifth Amendment's Double Jeopardy Clause." /d at 111. In light ofthe case history discussed above,we
agree. Bullington and Monge clearly indicate that whether a fact is an element for Fifth Amendment purposes depends on whether that fact is an element for Sixth 

### Amendmentpurposes,that is, whether the constitution requires that the fact be proved to a jury beyond a reasonable doubt. Subsequent cases have clarified the 

### test for determining what constitutes an element for Sixth Amendmentpurposes, but the United States Supreme Court has not indicated any intent to untether the 

### definitions ofan element for Fifth and Sixth Amendmentpurposes. The plurality in Sattazahn makes it clear that the Court is unlikely to do so,and we can find no
case in our own jurisprudence that draws the distinction between elements for Fifth 

### and Sixth Amendmentpurposes in a logically sound and intellectually honest way. 4. Our case law after Sattazahn and Alleyne has not addressed the precise issue before us 

### Our case law has long viewed aggravating circumstances as sentencing 

### factors not subject to double jeopardy,but "[w]e have yet to fully weave Apprendi

should be treated for double jeopardy purposes. Sattazahn,537 U.S.at 118 (Ginsburg,J., dissenting).

17State V. Allen,No. 95454-2

into the fabric ofour case law." State v. McEnroe, 181 Wn.2d 375,389, 333 P.3d 402 (2014). This is equally true ofAlleyne. In a handful ofcases, we have opined that the Apprendi line ofcases had no effect on how we view aggravating circumstances for double jeopardy purposes. However,in each case the facts were 

### distinguishable or the double jeopardy discussion was not central to our holding, and none ofthese cases had the benefit ofAlleyne. 

### For instance, in a case similar to Sattazahn,we held that a jury non-finding
on an aggravating circumstance did not constitute an acquittal and,thus,that double jeopardy did not prevent retrial ofthe aggravating circumstance. State v. 

### Benn, 161 Wn.2d 256,264, 165 P.3d 1232 (2007). Because Allen was actually 

### acquitted ofthe aggravating circumstances at his first trial,this case is clearly distinguishable. In other opinions,we have indicated that the Apprendi line ofcases does not 

### affect the definition ofan element for double jeopardy purposes,but doing so was not necessary to our decisions. For instance, in State v. Eggleston,the defendant
was acquitted offirst degree murder,but the jury returned a special verdict form on an aggravating circumstance relating to the first degree murder charge anyway. 164 Wn.2d 61,66-67, 187 P.3d 233 (2008). We held that the special verdict form did not preclude consideration ofthe same aggravating circumstance at a later resentencing, on either double jeopardy or collateral estoppel grounds,because the

18State V. Allen,No. 95454-2

jury's answer to the special verdict was unnecessary,irrelevant, and in violation of the court's instructions, so we declined to consider it. Id. at 73. Thus,although we 

### indicated that double jeopardy did not apply because the death penalty was not at issue,there was in fact no acquittal ofthe aggravating circumstance that would have implicated double jeopardy principles. In State v. Kelley, we considered whether imposition ofa firearm 

### enhancement where use ofa firearm was an element ofthe underlying offense violated the double jeopardy prohibition on multiple punishments for the same 

### offense, 168 Wn.2d at 74, We summarily dismissed that argument,holding that "[ijfthe legislature intends to impose multiple punishments,their imposition does not violate the double jeopardy clause," Id. at 77, We then discussed a "not 

### entirely clear" argument by Kelley that "because sentencing factors are treated as 'elements[]' [of]the 'offense'" under the Apprendi line ofcases,the firearm enhancement was "an 'element' ofa greater offense and therefore creates unintended,redundant punishment," Id. at 80-81, We concluded that since "none 

### of[the Apprendi cases] concern the double jeopardy clause," their holdings did not apply,and we assigned "no weight" to the plurality in Sattazahn. Id. at 82, However,this discussion was unnecessary to our holding,and Kelley did not
concern the same legal question presented here, Kelley claims he was wrongfully subjected to multiple punishments,while Allen faces multiple prosecutions.

19State V. Allen,No. 95454-2

Finally, as noted above in the discussion ofthe special verdict forms used in 

### Allen's trial,State v. Guzman Nunezheld thatjuiy unanimity is required for acquittal ofan aggravating circumstance. 174 Wn.2d at 719. We rejected our previous nonunanimity rule from Goldberg as incorrect because it was unsupported by authority and conflicted with our precedent. Id. at 713-14. We 

### further held that the nonunanimity rule was harmful because it was potentially confusing and could allow juries to acquit on aggravating circumstances based on 

### "an unwillingness to fully explore the reasons for any disagreement,"rather than 

### full and thorough deliberations. M at 718. Citing Mange and Eggleston,we also stated that the nonunanimity rule did not serve its purported purposes ofjudicial economy and finality because double jeopardy does not preclude retrial on aggravating circumstances outside the death penalty context. Id. at 717-18. However,as discussed above,Eggleston did not require us to reach that issue. 

### Guzman Nunezdid notpurport to reexamine the scope ofMange's holding in light ofthe Apprendi line ofcases,and further did not have the benefit ofAlleyne,which
was decided a year later. In sum,although our cases have previously indicated that RCW 10.95.020 

### aggravating circumstances are not elements for purposes ofthe Fifth Amendment's 

### double jeopardy clause,the legal underpinnings for those statements have changed

20State V. Allen,No. 95454-2



### dramatically. We have not fully considered the impact ofthese changes until today. 

### 5. The trial court properly dismissed the RCW 10.95.020 aggravating

circumstances on double jeopardy grounds Applying the principles from Alleyne to the facts before us, it is clear that the 

### trial court properly dismissed the RCW 10.95.020 aggravating circumstances on 

### double jeopardy grounds. Neither aggravating circumstance was limited to proof ofa prior conviction,and either one would have increased the minimum sentence 

### from a term ofyears to one oflife imprisonment without the possibility ofrelease
or parole. As such,the constitution requires the aggravating circumstances to be 

### proved to a jury beyond a reasonable doubt. The aggravating circumstances therefore no longer meet the definition of"sentencing factors" for Sixth Amendment purposes. They are elements. 

### Like the Sattazahn plurality, we can discern no principled basis for reaching
a different conclusion in the double jeopardy context. We therefore hold that RCW 10.95.020 aggravating circumstances are elements ofthe offense of 

### aggravated first degree murder for double jeopardy purposes. The jury acquitted Allen ofboth aggravating circumstances on all four counts in his first trial. Jeopardy therefore terminated on those circumstances,and the State is constitutionally barred from retrying them.

21State V. Allen,No. 95454-2
Conclusion

The special verdict forms combined with the polling ofthe jury show that 

### the first jury unanimously acquitted Allen ofthe RCW 10.95.020 aggravating circumstances. The trial court properly dismissed these aggravating circumstances at the second trial on double jeopardy grounds,and we therefore affirm the Court 

### ofAppeals and remand for further proceedings consistent with this opinion.

22State V. Allen,No. 95454-2

WE CONCUR:



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