GROUNDS FOR RELIEF
PETITIONER’S UNDERLYING HEREIN CHALLENGED CONVICTION AND SENTENCE UNDER RCW 10.95.020 IS “VOID FOR VAGUENESS” BASED ON THE STATE OF WASHINGTON COURTS’ DECISIONAL LAW CREATING ARBITRARY AND DISCRIMINATORY STANDARDLESS ENFORCEMENT RESULTING IN CHAOTIC LACK OF NOTICE UNDER THE SIXTH AND FOURTEENTH AMENDMENT TO THE UNITED STATE CONSTITUTION CULMINATING IN LACK OF DEFINITENESS PREVENTING MEANINGFUL OPPORTUNITY TO ADEQUATELY CHALLENGE CONVICTION.
Petitioner is challenging Washington State’s RCW 10.95.020 aggravation of penalty statute premised on the “void for vagueness” doctrine, Beckles v. United States, 580 U.S._, 137 S.Ct._,197 L.Ed.2d 145 (2017).
As conclusively evidenced by the fact and law below, Washington State Court decisional law interpreting and enforcing though decisional law, chaotic application and enforcement of RCW 10.95.020 (1) (a) which encompasses the conviction element of premeditated murder under RCW 9A.32.03. (1) (a), contrary to the dictates of Alleyne v. United States, 570 U.S.99, 133 S. Ct. 2151, 186 L.Ed.2d 314 (2013) and Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), for example: as evidenced below, Washington State Court decisional law has concluded the RCW 10.95.020 (1) (a) is not a crime, but only means of enhancing the penalty for conviction of the crimes of RCW 9A.32.030 (1) (a) premeditated murder “Statutory aggravators do not have to be defined,” because “the aggravating circumstances set forth in RCW 10.95.020…are not elements of the underlying crime of murder,” therefore, the “to convict” instruction need not include elements of aggravating factors,” and that any of the aggravating factor criminal offenses enumerated do “not violate due process so long as the crimes are not based on the same aspect of the defendant’s conduct and are not themselves elements of aggravated first degree murder,” culminating in the bizarre decisional law determining that when premeditated murder and felony murder are charged in separate counts there is not double jeopardy violation, however, when as here, the two alternative ways of committing the crime of first degree murder are premeditated murder and felony murder charges in a single count, then there is only one crime charged and jury unanimity is not required as to which of the two separate and distinct charges are adjudicated, see below: (page 2 and 3) “STATE COURT INCONSISTENT ELEMENTAL NOTICE DEFICIENCIES, (page 4) “RCW 10.95.020 IS VOID FOR VAGUENESS AS INTERPRETED BY WASHINGTON SUPREME COURTS,” (page 5) “FIRST DEGREE PREMEDITATED MURDER AND FELONY MURDER ALTERNATE WAYS TO COMMIT SINGLE FIRST DEGREE MURDER OFFENSE,” in this case.
STATE COURT INCONSISTENT ELEMENTAL NOTIC DEFICIENCIES
State v. Kron, 63 Wn.App. 688, 821 P.2d 1248 (1992) (“As we have seen, aggravated murder itself is not a crime, but a means of enhancing the penalty for certain kinds of first degree murder. Obviously, the state cannot charge a crime without statutory authority”)
State v. Corrodo, 78 Wn.App. 612, 898 P.2d 860 (1995) (States failure to file a valid information deprived the trial court of jurisdiction and “an order entered without jurisdiction is void”).
In re Pers. Restraint of Elmore, 162 Wn.2d 236, 172 P.3d 335 (2007) (“Statutory aggravators do not have to be defined”).
State v. Kincaid, 103 Wn.2d 304, 692 P.2d 823 (1985) (“The aggravating circumstances set forth in RCW 10.95.020…are not elements of the underlying crime of murder”).
State v. Mills, 154 Wn.2d 1, 109 P.3d 415 (2005) (“To convict instruction need not include elements of aggravating factors”).
State v. Brett, 126 Wn.2d 136, 892 P.2d 29 (1995) (“For purposes of RCW 10.95.020 (9) which specifies crimes that constitute an aggravating circumstances when first degree murder was committed, in the course of, in furtherance of, or in immediate flight from the specified crime, the use of more than one such crime as an aggravating circumstance does not violate due process so lang as the crimes are not based on the same aspect of the defendant’s conduct and are not themselves elements of aggravated first degree murder”).
State v. Lord, 123 Wn.2d 296, 868 P.2d 835 (1994) (“Aggravated First Degree Murder and first degree felony murder are not different means of committing the same offense, nor are they greater and lesser offenses of each other”).
State v. Irizarry, 111 Wn.2d 591, 763 P.2d 432 (1988) (“Premeditated first degree murder is a lesser included crime of first degree aggravated murder but felony murder is not a lesser included of either such crimes; however, conviction of the uncharged, not lesser included crime of first degree felony murder, requires dismissal but defendant can still be charged with first degree felony murder without violating double jeopardy prohibitions”).
State v. Fuller, 185 Wn.2d 30, 367 P.3d 1057 (2016) (“For purposes of this double jeopardy analysis, it does not matter that the State charged Fuller with alternative means of committing the same crime in separate counts because ultimately he was charged with one offense”).
State v. Meas, 118 Wn.App. 297, 75 P.3d 998 (2003) review denied 151 Wn.2d 1020, 91 P.3d 95 (2004) (“Aggravated first degree murder and first degree felony murder are two different crimes, with different statutory elements. Aggravated first degree murder required proof of premeditated intent to kill while first degree felony murder requires proof of the mental state required b the underlying felony. The two crimes are not different means of committing murder; nor are the greater of lesser offenses”).
State v. Irizarry, 111 Wn.2d 591, 783 P.2d 432 (1988) (“These statutory aggravating circumstances are “aggravation of penalty” factors and are not “elements” of the crime as such. Felony murder is not a lesser degree of aggravated murder in the first degree:).
In re Pers. Restraint of St. Pierre, 118 Wash.2d. 321, 823 P.2d 492 (1992) (“Courts routinely instruct juries that crime of aggravated first degree murder included lesser offense of felony murder, which was not expressly charged and which is not properly treated as an included offense within aggravated first degree murder”).
State v. Allen, No. 48384-0-II (2017) (“Premeditated murder in the first degree with aggravating circumstances is not a crime in and of itself…Aggravating circumstances are “not elements of the crime, but they are ‘aggravation of penalty’ factors.” State v. Brett, 126 Wn.2d 136, 154, 892 P.2d 29 (1995)”).
State v. Ellison, 36 Wn.App. 564, 66 P.2d 531, review denied, 101 Wn.2d 1010 (1984) (“A criminal defendant charged with first degree premeditated murder and first degree felony murder in a single count, is charged only with a single crime, where unanimity is unnecessary as to which alternative ways of committing said single crime charged”).
State v. Meas, 118 Wn.App. 297, 75 P.3d 998 (2003) review denied 151 Wn.2d 1020, 91 P.3d 95 (2004) (“Holding that the State’s separately charging the defendant with both aggravated first degree murder, and first degree felony murder, rather than as alternative means of committing the same offense, did not violate double jeopardy protections”).
Johnson v. United States, 576 U.S._, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (“The Fifth Amendment…principles apply not only to statutes defining elements of crimes, but also the statutes fixing sentences”)
State v. Turner, 169 Wn.2d 448, 238 P.3d 461 (2010) (“The protection against double jeopardy provided by Conts. Art. I, & 9 is coextensive with the protection provided by the Fifth Amendment and if given the same interpretation as the United States Supreme Court gives the Fifth Amendment”).
RCW 10.95.020 IS VOID FOR VAGUENESS AS INTERPRETED BY WASHINGTON SUPREME COURTS
Welch v. United States, 578 U.S. _, 136 S.Ct. _, 194 L.Ed.2d 387 (2016):
The void for vagueness doctrine prohibits government from imposing sanctions under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standard-less that it invites arbitrary enforcement.
Beckles v. United States, 580 U.S. _, 137 S.Ct. _, 197 L.Ed.2d 145 (2017):
This Court has held that the Due Process Clause prohibits the Government from “taking away someone’s life, liberty, or property under a criminal law so vague that is fails to give ordinary people fair notice of the conduct it punishes, or so standard-less that it invites arbitrary enforcement,” Johnson v. United States, 576 U.S. _, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (citing Kolender v Lawson, 461 U.S. 352, 357-358 (1983). Applying this standard, the Court has invalidated two kinds of criminal laws as “void for vagueness”; laws that define criminal offenses and laws that fix the permissible sentences for criminal offenses.
For the former, the Court has explained that the void for vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct if prohibited and in in a manner that does not encourage arbitrary and discriminatory enforcement.” Id., at 357.
An unconstitutionally vague law invites arbitrary enforcement in this sense if it “leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case”.
Justice Sotomayor, concurring in the judgment.
The Due Process Clause requires that rules this weighty be drafted “with sufficient definiteness that ordinary people can understand” them, and “in a manner that does not encourage arbitrary and discriminatory enforcement”. Kolender v. Lawson, 461 U.S. 352, 357 (1983)…. The prohibition against vagueness in criminal proceeding is “a well recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law.” Connally v. General Constr. Co., 269 U.S. 385, 391 (1926).
RIGHT TO JURY TRIAL ON ALL FACTS ESSENTIAL TO THE ELEMENTS OF THE CRIME CHARGED AND SENTENCE IMPOSED
State v. Dyson, 189 Wn.App. 215, 360 P.3d 25 (Wash.Ct. App. 2015):
The Sixth Amendment guarantees a criminal defendant the right to an impartial jury, Article, I, section 21 of the Washington Constitution similarly provides in relevant part the “the right of trial by jury shall remain inviolate.” The jury serves as an intermediary between the State and a judge as an agent of the State on the one hand, and the criminal defendant, on the other hand. United States v. Gaudin, 515 U.S. 506, 510-11, 115 S.Ct. 2310, 1342 L.Ed.2d 444 (1995). The right to a jury trial is a great bulwark of civil and political liberties, Alleyne v. United States, 570 U.S. 99, 133 S.Ct. At 2161, 186 L.Ed.2d 314 (2013). When coupled with the command of the due process clause of the Fourteenth Amendment, the Sixth Amendment demands that an impartial jury find beyond a reasonable doubt all elements of the charged offense for the defendant to be convicted. Apprendi v. New Jersey, 530 U.S. 466, 490 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
Under the common law at the time of the adoption of the United Stated Bill of Rights a fact essential to the penalty was an element of the crime, Alleyne v. United States, 133 S.Ct. At 2159. Therefore, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. at 490, 120 S.Ct. 2348. The term “statutory maximum” means the maximum sentence a judge may impose based solely on the jury’s verdict without making any additional findings, Blakely v. Washington, 542 U.S. 296, 303-04, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Therefore, any fact supporting a sentencing enhancement must be either admitted by a defendant or found by the jury. Blakely, 542 U.S. at 304, 124 S.Ct. 2531.
The U.S. Supreme Court recently clarified the holding of Apprendi as also applying to a trial court’s imposition of a mandatory minimum sentence. Alleyne v United States, 133 S.Ct. At 2160. Any fact 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. Apprendi, 530 U.S. at 483 n. 10, 120 S.Ct. 2348. Mandatory minimum sentences increase the penalty of the crime. Alleyne, 133 S.Ct. At 2155. Like a maximum sentence, the minimum sentence is intended to and does dictate the amount of time spent confined. Because “facts increasing the legally prescribed floor aggravate the punishment…the fact necessarily forms a constituent part of a new offense and must be submitted to the jury.” Alleyne, 133 S.Ct. At 2161-62, Alleyne overruled Harris v United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), in which the high Court held permissible judicial fact-finding that increased the mandatory minimum sentence for a crime.
FIRST DEGREE PREMEDITATED MURDER AND FELONY MURDER SEPARATE AND DISTINCT CRIMES WITH DIFFERENT ELEMENTS
State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980) (“First degree aggravated murder factors are separate and distinct criminal offenses”)
State v. Meas, 118 Wn.App. 297, 75 P.3d 995 (2003) review denied 151 Wn.2d 1020, 91 P.3d 95 (2004) (“Aggravated first degree murder and first degree felony murder are two different crimes, with different statutory elements”)
State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980) (“The alternative ways of committing aggravated murder in the first degree are themselves separate and distinct criminal offenses”)
State v. Ellison, 36 Wn.2d App. 564, 66 P.2d 531, review denied, 101 Wn.2d 1010 (1984) (“When a defendant is charged under a criminal statute that describes a single offense committable in more than one way, rather than separate and distinct offenses, jury unanimity is unnecessary as to the means but only as to the commission of the offense… Here, Ellison was charged with premeditated murder, RCW 9A.32.030 (1) (a), and felony murder, RCW 9A.32.030 (1) (c), both of which constitute first degree murder.”)
State v. Fortune, 77 Wn.App. 628, 893 P.2d 670 (1995) affirmed 128 Wn.2d 464, 909 P.2d 930 (1996) (“Before a penalty for aggravated murder can be imposed, there must first be jury unaniminity as to the premeditated means of committing first degree murder, under Washington law, therefore, it is not possible for defendant to receive a sentence for aggravated first degree murder”)
State v. Allen, No. 48384-0-II (Dec. 19, 2017) (“Aggravating circumstances are not elements, but are the functional equivalent of elements therefore the jury’s failure to find aggravating circumstances in the first trial precluded the State from such charging because of the double jeopardy clause”)
State v. Meas, 118 Wn.App. 297, 75 P.3d 995 (2003) review denied 151 Wn.2d 1020, 91 P.3d 95 (2004) (“The State’s separately charging the defendant with both aggravated firs degree murder, and first degree felony murder, rather than as alternative means of committing the same offense, did not violate double jeopardy protections”)
State v. Roberts, 142 Wn.2d 471, 14 P.2d 713 (Wash. 2000) (“Duplicity is the joining in a single count of two or more distinct and separate offenses and ‘multiplicity’ is the charging of a single offense in several counts….We acknowledge that aggravated first degree murder and first degree felony murder are separate offenses…Therefore, this information is technically duplicitous”)
FIRST DEGREE PREMEDITATED MURDER AND FELONY MURDER ALTERNATE WAYS TO COMMIT SINGLE FIRST DEGREE MURDER OFFENSE
State v. Bowerman, 115 Wn.2d 794, 802 P.2d 116 (1990) (“Premeditated murder, and felony murder are not separate crimes. They are alternative ways of committing the single crime of first degree murder, where there are alternative ways to commit a crime it is permissible to charge both alternatives in the same count”)
State v. Johnson, 113 Wn.App. 482, 54 P.2d 155 (2002) (“The court found that alternate charges of intentional murder and felony murder constituted a single offense and properly entered judgment and sentenced Johnson for only one crime”)
State v. Wright, 165 Wn.2d 783, 203 P.3d 1027 (2009) (“A defendant charged and tried under multiple statutory alternatives experiences the same jeopardy as one charge and tried on a single theory. The defendant is in jeopardy of a single conviction and subject to a single punishment, whether the State charges a single alternative or several”)
In re Pers. Restraint of Strandy, 171 Wn.2d 817,256 P.3d 1159 (2011) (Per curiam) (“For sentencing purposes, the trial court merged the felony murder convictions with the aggravated first degree murder convictions, but it did not vacate the felony murder convictions. The State conceded that Strandy is entitled to vacation of the felony murder convictions… Multiple convictions and punishments for the same offense imposed in the same proceeding violate the Fifthe Amendment probibitions against Double Jeopardy, Ball v. United States, 470 U.S. 856, 864-65, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1995)”)
COURT CANNOT DISMISS ONLY ONE ALTERNATIVE
State v. Bowerman, 115 Wn.2d 794, 802 P.2d 116 (1990) (“Has Bowerman been rearraigned on both alternate ways of committing the once crime of first degree murder charged in Count I. At that time she would have had a statutory right to plead guilty to first degree murder. She would not have had the right to choose one portion (felony murder) of the charges against her and plead guilty to just that portion of the charge…Where an information alleges more than one means of committing a single crime, the right to plead guilty is a right to plead guilty to the one crime charged”)
State v. Thompson, 60 Wn. App. 662, 806 P.2d 1251 (1991) (“Since felony murder is not lesser included offense of aggravated first degree murder, a defendant charged with bot felony murder and aggravated first degree murder may plead guilty of felony murder when arraigned for the first time, however, such a plea would not preclude the prosecutor from pursuing the companion charge of premeditated first degree murder and from seeking the death penalty upon proof of aggravating circumstances”)