GROUNDS FOR RELIEF:
THE TRIAL COURT LACKED COMPETENT JURISDICTION OVER THE SUBJECT MATTER OF THE NON-EXISTENT CRIME OF AGGRAVATED FIRST DEGREE MURDER WHICH WAS CHARGED ALONG WITH THE ALTERNATE CRIME OF FIRST DEGREE FELONY MURDER RESULTING AS ONE OF THE ALTERNATE WAYS TO COMMIT FIRST DEGREE MURDER BEING LEGALLY INSUFFICIENT RENDERING CONVICTION VOID AS MATTER OF LAW.
Defendant-Petitioner Taylor Conley was charged with aggravated first degree murder, which is a non-existent crime, with the alternate way to commit aggravated first degree murder being first degree felony murder of which is not an alternative way to commit the non- existent crime of first degree aggravated murder, see Addendum (A), page 5.
Washington Courts have determined that RCW 10.95.020 is not a crime in and of itself, 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”) ; 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. Anderson, No. 54353-9-1 (2005) (Aggravating factors are not elements of aggravated first degree murder. The crime is premeditated murder in the first degree accompanied by one or more of the aggravating factors) ; State v. Allen, No. 48384-0-II (2017) (“Premeditated murder in the first degree with aggravating circumstances in not a crime in and of itself”)
In other words, RCW 10.95.020 is nothing more or less that “definition” of aggravating factors that increase the punishment for a conviction of First Degree premeditated murder, RCW 9A.32.030(1) which encompasses three separate and distinct ways to commit the crim of “Murder in the First Degree,” to wit: (a) With premeditated intent; (b) Extreme Indifference to Human Life; and (c) Felony Murder, compare, 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”) with 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”).
The Washington Courts appear to create inherent confusion by not distinguishing between what a criminal defendant can be lawfully charged with, and the required separate jury verdicts to support a conviction, compare State v. Boweman, 115 Wn.2d 794, 802 P.2d 116 (1990) (“The count alleged two alternative ways of committing that single crime (1) aggravated, premeditated murder, and (2) felony murder. 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”) with State v. Meas, 118 Wn.App. 297, 75 P.3d 998 (2003) review denied 151 Wn.2d 1020, 91 P3.d 95 (2004) (“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. Aggravated first degree murder and first degree felony murder are two different crimes, with different statutory elements”.) and State v. Allen, No. 48384-0-II (Dec. 19, 2017) (“Aggravating circumstances are not elements, but are the functional equivalent of element therefor they jury’s failure to find aggravating circumstances in the first trial precluded the State from such charging because of the double jeopardy clause”).
To confer competent jurisdiction upon a Washington Superior Court, and Information must charge, premeditated murder under RCW 9A.32.030(1) (a), with separate and distinct aggravating factors under RCW 10.95.020, see State v. Allen, No. 48384-0-II (Dec. 19, 2017) (“Premeditated murder in the first degree with aggravating circumstances is not a crime in and of itself, The crime is premeditated murder in the first degree, which is accompanied by statutory aggravators”) ; thereby such aggravated first degree murder factors must be charged in the secondary, akin to a firearm enhancement, otherwise, a jury’s failure to find said aggravating circumstances would preclude sentencing and/or retrial of premeditated murder, cf., 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 trial precluded the State from such charging because of the double jeopardy clause”) ; In re Pers. Restraint of Elmore, 162 Wn.2d 236, 172 P.3d 395 (2007) (“Statutory aggravators do not have to be defined”) ; compare, State v. Fortune, 77 Wn.App. 628, 893 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 without jury unanimity as to the underlying premeditated murder”).
In addition, when as in this case, the RCW 10.95.020 aggravating circumstances are charged as primary in the Information, then Fifth, Sixth and Fourteenth Amendment violations are inherent requiring identification of all facts necessary to constitute the elements of the separate crimes encompassed in the aggravating factors, see State v. Kincaid, 103 Wn.2d 304, 692 P.2d 823 (1985) (“The aggravating circumstances set forth in RCW 10.95.020 which when proved beyond a reasonable doubt enhance the punishment for premeditated first degree murder is death or life imprisonment without parole, are not elements of the underlying crime of murder”) ; with Washington Courts creating further confusion by dubiously requiring a jury to find the aggravating factors beyond a reasonable doubt, with out requiring the State to satisfy procedural and substantive due process as well as Sixth Amendment Notice requirements of adequate notice, by not requiring the State to include the aggravating factors in the “to convict” instruction or to even properly identify the aggravating factors, see State v. Mills, 154 Wn. 1, 109 P.3d 415 (2005) (To-convict instruction need not include elements of aggravating factors) ; State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980) (First degree aggravated murder factors are separate and distinct criminal offenses) ; In re Pers. Restraint of Elmore, 162 Wn.2d 236, 172 P.3d 335 (2007) (Statutory aggravators don not have to be defined) ; State v. Allen, No. 48384-0-II (2017) (“Aggravating circumstances are not elements”) ; 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”) ; 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 the defendant can still be charged with first degree felony murder without violating double jeopardy prohibitions) ; State v. Eliiso, 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).
The foregoing chaotic application of law by our Washington Courts is overwhelming evidence that charging RCW 10.95.020 aggravating factors as the crime of Aggravated First Degree Murder in this case, is unlawful and unconstitutional rending all jury verdicts and convictions null and void, cf., State v. Corrodo, 78 Wn.App. 612, 898 P.2d 860 (1995) (“Subject matter jurisdiction cannot be conferred by consent, waiver, or estoppel on the part of the accused”).