stating that where a factor aggravates an offense and imposes a greater punishment, due process requires its presentation to a jury for consideration
How later courts described this case
- stating that where a factor aggravates an offense and imposes a greater punishment, due process requires its presentation to a jury for consideration
- “Where a factor aggravates an offense and causes the defendant to be subject to a greater punishment than would otherwise be imposed, due process requires that the issue ... must be presented to the jury . .. before the court can impose the harsher penalty.” (citing State v. Nass, 76 Wn.2d 368, 456 P.2d 347 (1969))
- precluding firearm enhancement at resentencing when absolutely no notice was given in advance and jury made only a “deadly weapon” finding
- “Appellant also urges she was improperly sentenced inasmuch as RCW 9.41.025 is unconstitutional”
Written by the judges who cited it.
Distinguished
Distinguished by In re the Personal Restraint of Jackson, 175 Wash. 2d 155 (2012)
Frazier is distinguishable, however, because it relied heavily on the fact that absolutely no notice of the enhancement had been given in that case.
The opinion
*636 Hale, J.
(concurring in the result)—I concur in the result, but only because the special verdict 3 referred to a deadly weapon instead of a firearm as prescribed by RCW 9.41.025. Once the accused is informed in the information 4 that he is charged with an assault by means of a firearm, i.e., pistol, revolver, rifle, etc., and a special verdict is returned that, at the time of the offense, he was armed with a firearm, all of the requirements of the constitution affecting the charge and special verdict are met, and there is no want of due process. The prosecution is not required to plead conclusions of law nor list and prove all of the prior convictions as described in RCW 9.41.025. Prior offenses, in my judgment, may be shown at sentencing, subject to the right in the accused to refute or deny them.
Further, the concepts of criminal law as expressed in United States v. Rizzo, 409 F.2d 400 (7th Cir. 1969), cert. denied, 396 U.S. 911 , 24 L. Ed. 2d 187 , 90 S. Ct. 226 (1969), are better left unstated, as assault, first, second and third degree, is peculiarly statutory in this state and does not depend for viability upon conceptualization. If comparisons must be made, assault in the first degree is more akin to an attempted murder in the first degree than it is to either a common-law assault or battery or assault and battery.
Wright, J., concurs with Hale, J.
“To be answered if the defendant is found guilty of Assault in the Second Degree as charged in the Amended Information.
“Was the defendant armed with a deadly weapon at the time of the commission of her offense? Yes Yes No_.”
“And for a Second Count and further cause of action . . . comes now Ronald L. Hendry, Prosecuting Attorney in and for the County of Pierce, State of Washington, and by this information accuses Yolanda Annette Frazier of the crime of Assault in the Second Degree, committed as follows, to-wit: That the said- Yolanda Annette Frazier, in the County of Pierce, in the State of Washington, on or about, the 8th day of September, 1970, did then and there being unlawfully, wilfully and feloniously, commit an assault upon the person of Beverly Ann Johnson under circumstances not amounting to an assault in the first degree, to-wit: did wilfully assault Beverly Ann Johnson with a weapon, instrument or thing likely to produce grievous bodily harm, to-wit: a pistol.”