Washington Supreme Court Vacates Sentencing Enhancement Not Adequately Described in Information

The Washington Constitution provides that a person accused of a crime has a right to notice of “the nature and cause of the accusation against him.” An information in a Washington criminal case must set out all essential elements of the crime along with the facts that support them.  If the information does not include this information, it is deficient.  The information must also include any enhanced penalties the prosecution intends to seek.  When the adequacy of an information is challenged, the court looks at the charging document, and does not consider the evidence presented at trial or jury findings.

A defendant recently challenged a sentencing enhancement after her conviction of four counts of delivering a controlled substances.  She argued that the information did not give her adequate notice of the enhancement.  The charges arose from two controlled drug buys by a confidential informant.  The information, amended multiple times, alleged four counts of delivery of a controlled substance.  The first and third information included aggravating circumstances with each count that alleged the defendant violated RCW 69.50.401 by engaging in the prohibited activity “within one thousand feet of a school bus route…”

The defendant was convicted of four counts of delivering a controlled substance, which the jury found occurred, “within one thousand feet of a school bus route stop.”  She received a 24-month enhanced sentence due to those findings.

The defendant appealed.  She argued the information was deficient in providing notice of the sentence enhancement because it did not include the word “stop.”  The court of appeals found she had adequate notice of the enhancement because advising her “the crimes were committed within 1,000 feet of a bus route necessarily include[s] any bus stops along that route.”  The dissent, however, found that a bus route was not equivalent to a bus stop, and a person who delivered controlled substances within 1,000 feet of a school bus route did not necessary violate the statutory aggravator.

The Washington Supreme Court then granted the defendant’s petition for review.

RCW 69.50.435(l)(c) allows the court to double the penalty for delivery of a controlled substance and increases the standard sentence range.

In determining if an information included the required information following a conviction, an appellate court considers whether the necessary facts appear in the document and, if so, whether the defendant was actually prejudiced by the language in the document causing a lack of notice.  Under the first prong, if the information does not use the exact language from the statute, the court must determine if the language used reasonably informs the defendant of the elements of the crime.  Washington case law has held the information must allege the elements of the crime in equivalent terms or terms that are more specific than what is set forth in the statute.

The language of the statute allows for sentencing enhancement when the delivery occurs “[w]ithin one thousand feet of a school bus route stop designated by the school district.” A “school bus route stop” is defined as “a school bus stop as designated by a school district.” RCW 69.50.435.  The information did not allege the delivery occurred near a school bus stop, but that it occurred “within one thousand feet of a school bus route.”

The Washington Supreme Court found the language in the information was broader than the statutory language.  The Washington Supreme Court agreed with the dissenting opinion of the appeals court that there were areas along the school bus route that were not designated bus stops.  The information therefore failed the first prong of the test because a necessary fact could not be found or implied from the information.

The state argued the defendant was still reasonably apprised of the enhancement through the proper jury instructions and the statutory citation in the information.  The state also argued the defendant cross-examined a witness about a bus stop and did not request a bill of particulars.  The Washington Supreme Court noted that case law focuses on the charging document, and its failure cannot be cured by the events at trial.  Additionally, inclusion of the statutory citation is not sufficient to notify the defendant of the facts supporting the accusation.

The Washington Supreme Court reversed the appeals court, vacated the sentencing enhancement and remanded for re-sentencing.  The dissent, however, concluded the charging information adequately notified the defendant of the sentencing enhancement.

The state has an obligation to follow certain procedures in criminal cases.  In some cases, the state’s failure to follow appropriate procedures can seriously affect the defendant’s rights.  If you have been charged with a crime, an experienced Washington criminal defense attorney will fight to protect your rights.  The attorneys at Blair & Kim, PLLC, have a thorough understanding of Washington criminal laws and procedures.  Call us at (206) 622-6562.

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