State v. Siers, 158 Wash. App. 686

After Powell, the State must plead aggravating factors in the information for an exceptional sentence.
Siers was charged with two counts of second-degree assault with deadly weapon enhancements; no aggravating factor was alleged in the information.
The State sought a Good Samaritan aggravator against count 2; trial occurred after notice but without amendment to the information.
The jury found Siers guilty on both counts and, for count 2, answered yes to the Good Samaritan aggravator on a special verdict form.
At sentencing, the court did not impose an exceptional sentence but weighed the aggravator in choosing the high end of the standard range; no enhanced sentence was imposed.
Siers argues the uncharged aggravator rendered the underlying offense constitutionally defective and seeks reversal; the State argues the appropriate remedy is to strike any improvident sentence, not reverse the conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the remedy for an uncharged aggravator is reversal and dismissal.	Siers—essential element omission requires dismissal.	State—remedy is to vacate any enhanced sentence and remand.	Conviction reversed and count 2 dismissed without prejudice to refile.
Whether aggravating factors are essential elements requiring inclusion in the information post-Blakely.	Powell requires charging aggravators in the information.	Post-Blakely case law allows noncharged aggravators to be used for sentencing.	Aggravators must be charged to obtain an enhanced sentence; failure to plead requires relief for the defendant.
What is the appropriate remedy when an uncharged aggravator is presented to a jury post-Blakely?	Remedy is dismissal of the underlying offense.	Remedy would be empty where no exceptional sentence was imposed.	Reverse the aggravated conviction; dismiss without prejudice; allow State to refile.

State v. Powell, 167 Wn.2d 672 (Wash. 2009) (noting aggravating factors must be charged for post-Blakely cases; information notice required)
State v. Kjorsvik, 117 Wn.2d 93 (Wash. 1991) (essential elements must be in charging document; notice principles apply to charging)
State v. Vangerpen, 125 Wn.2d 782 (Wash. 1995) (remedy for omissions in information is reversal and dismissal without prejudice)
State v. Frazier, 81 Wn.2d 628 (Wash. 1972) (due process requires jury consideration of aggravating factors before harsher penalty)
McCarty, 140 Wn.2d 420 (Wash. 2000) (information must identify essential elements; omission undermines verdict)