(dissenting) — The defendant is not subject to the death penalty because the state did not timely serve the statutorily required notice within 30 days of arraignment; defense attorneys were wrongfully denied a continuance to assess whether Dwayne Woods was entitled to a statutorily mandated competency hearing; and, finally, the court failed to adequately establish waiver of the right to present mitigation evidence.
I
Notice of Special Sentencing Proceeding
Given the unique qualities of the death penalty, the Legislature has tailored pretrial procedures to govern the use of a special sentencing proceeding. . . . [FJiling and service of notice is mandatory—no notice, no death penalty.[18]
Where the penalty is death, and the statutory requirement is plainly stated, the state must follow mandated statutory procedures.
RCW 10.95.040(2) requires:
[t]he notice of special sentencing proceeding shall be filed and served on the defendant or the defendant’s attorney within thirty days after the defendant’s arraignment upon the charge of aggravated first degree murder. . . .
(Emphasis added.) A prosecuting attorney may not seek the death penalty “[i]f a notice of special sentencing proceeding is not filed and served as provided in this section.” RCW 10.95.040(3).
Although the prosecutor filed a timely notice of special sentencing proceeding after Woods’s first arraignment, a *623second amended information was later filed which took the place of the first. Woods was then rearraigned, pleading not guilty to the new information, but no notice of a special sentencing was then served and filed pursuant to the statute.
The state argues the amendments were a change in form rather than substance, and thus they required neither a new arraignment nor a new notice. I disagree.
First, it is well settled substantial amendment to an information requires that the accused be arraigned on the amended information. State v. Hurd, 5 Wn.2d 308, 312, 105 P.2d 59 (1940); see also CrR 2.1(d) (amendment of existing information allowed only “if substantial rights of the defendant are not prejudiced.”).
RCW 10.95.020(10) identifies as an aggravating circumstance, “[t]here was more than one victim and the murders were part of a common scheme or plan or the result of a single act of the person.” (Emphasis added.) The original information, however, did not allege “there was more than one victim” in either Count I or II; therefore the sole aggravating circumstance alleged in the original information was simply “the murder [] [was] part of a common scheme or plan.” RCW 10.95.020(10). The prosecutor then amended the information to add “as an additional aggravating circumstance that there were multiple victims involved in this offense.” Clerk’s Papers (CP) at 64 (emphasis added). This added aggravating factor was a substantive change that necessitated the rearraignment because it provided an additional basis to find the defendant guilty of the crime.
Second, and even more fundamentally, the second arraignment, necessary or not, was an arraignment. Thus it required a notice under the plain language of the statute. The second arraignment superseded the first.19 The statute *624mandates notice after arraignment but none was filed after the rearraignment.
“[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long.” Because of this difference, we should strive to ensure that the procedures and safeguards enacted by the Legislature are properly followed by the State. The determination of whether a defendant will live or die must be made in a particularly careful and reliable manner and in accordance with the procedures established by the Legislature.
State v. Luvene, 127 Wn.2d 690, 719 n.8, 903 P.2d 960 (1995) (quoting Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976)). Luvene overturned a death penalty because the prosecutor failed to timely file a notice of intent to seek the death penalty under RCW 10.95.040. But the majority fails to follow Luvene’s mandate.
The majority claims the purpose of the statute is merely to provide notice the death penalty may be imposed, citing State v. Clark, 129 Wn.2d 805, 920 P.2d 187 (1996). Majority at 589. But this claim begs what the statute actually says, as opposed to what the majority would prefer it to say.20
Clark considered whether proper service was effectuated under RCW 10.95.040. Confronted with “an issue of statutory interpretation,” we rejected a liberal construction of the statute,21 noting the legislature’s specific language on service of notice. Clark, 129 Wn.2d at 811-12. We pointed *625out that the state could have easily avoided the problem, opining:
The State should be aware in light of Dearborn and Luvene that anything less than a punctilious approach toward the filing and service of the statutory notice in a death penalty case is a risky practice. Especially when the ultimate penalty is involved, this Court’s duty is to ensure the defendant receives every statutory protection the Legislature has provided. We will not condone sloppy practice in service of the notice under RCW 10.95.040.
Clark, 129 Wn.2d at 816 (emphasis added).
The majority also cites State v. Rupe, 108 Wn.2d 734, 740, 743 P.2d 210 (1987), aff’d in part, vacated in part on other grounds sub nom. Rupe v. Wood, 93 F.3d 1434 (9th Cir. 1996), asserting RCW 10.95.040’s notice requirement applies only to the prosecutor’s original decision to seek the death penalty. Majority at 589. However Rupe held no new notice was required by the statute when the conviction was affirmed on appeal but remanded for a new sentencing hearing absent a new arraignment. Rupe, 108 Wn.2d at 740. New statutory notice was obviously not required under those circumstances because there was no new arraignment, as RCW 10.95.040 by its terms requires notice after an arraignment. Thus Rupe lends no support to the majority.
The case today is, however, identical to State v. Brett, 126 Wn.2d 136, 151, 892 P.2d 29 (1995). There the prosecutor properly filed a second notice of intent to seek the death penalty after a second arraignment. The procedure followed there should have been followed here.
The majority foreshadows its confusion by speculating it can imagine a case in which the filing of an amended information might raise the need for a new notice to be filed. Majority at 590 n.9. But the prospect of such uncertainty is precisely the reason death penalty statutes must be strictly construed and procedural requirements rigidly observed:
*626In sum, the requirements of RCW 10.95.040 are quite simple. If the State wishes to seek the death penalty in a particular case, it must file a notice of intent within thirty days of arraignment.... It is not unduly burdensome to ask the State to follow these simple procedures, especially when they are so flexible and designed to give the State every reasonable opportunity to file notice.
Luvene, 127 Wn.2d at 719.
In matters of life and death, we are not in the business of deciding which statutes we must follow and which we may ignore, nor is this the place for judicial “imagination.”
II
Denial of Motion for Continuance
The majority also errs by affirming the trial court’s denial of the requested one-week continuance for a competency investigation. Notwithstanding Woods’s life hung in the balance, and his mental competence was legitimately in question, the majority is apparently unwilling to spare even a single week for the court to perform its statutorily mandated duty to adequately determine a defendant’s mental competency to run the gauntlet of a death penalty sentencing proceeding.
1. The Trial Court Wrongly Applied the “Threshold Determination” Standard to the Request for a Continuance
The decision to grant or deny a motion to continue is within the trial court’s discretion and is reviewable only for a manifest abuse of discretion. State v. Adamski, 111 Wn.2d 574, 577, 761 P.2d 621 (1988). Discretion is abused when the trial court’s decision is manifestly unreasonable, or is exercised on untenable grounds, or for untenable reasons. State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993). Here, the “closer, more careful review of the record” required for death penalty sentencing22 reveals the trial *627court’s denial of the continuance was based on an incorrect standard and was therefore an abuse of discretion. See State v. Rundquist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995) (noting that a court has acted for “untenable reasons” and abused its discretion if it has used incorrect standard).
The statute governing competency determinations mandates the court shall require an expert examination of the defendant’s mental condition when “there is reason to doubt his or her competency.” RCW 10.77.060(1)(a). In State v. Lord, 117 Wn.2d 829, 901, 822 P.2d 177 (1991) we said such a hearing was required “if the court makes the threshold determination that there is reason to doubt the defendant’s competency.” (Emphasis added.)
However here the court applied the “threshold determination” standard to the mere request for a continuance. At this stage counsel did not ask for a hearing but a continuance to enable them to investigate and potentially marshal evidence and testimony of the defendant’s potential incompetence to use at a hearing. See Mot. to Continue Penalty Phase, CP at 2583; Cert. of James L. Sheehan (noting “we are simply asking for an additional week to adequately assess the true state of mind of Mr. Woods”). CP at 2591. But the trial judge preempted the process by applying the ultimate standard of proof to the request for time itself. He then denied the continuance based on the unavailability of the very evidence for which the continuance was sought to obtain. But under the statute the court has an independent obligation to convene such a hearing once there is reason to doubt competency. (“Whenever . . . there is reason to doubt [the defendant’s] competency, the court.. . shall. . . appoint ... at least two qualified experts or professional persons ... to examine and report upon the mental condition of the defendant.” RCW 10.77.060(1)(a)).
In contrast the trial judge in Lord allowed the defense ample opportunity to produce evidence before ruling on whether the requisite “threshold” had been met. Testimony was allowed from a corrections officer who had transported *628Lord, and the court “also gave the defense an opportunity to have its own expert examine Lord.” Lord, 117 Wn.2d at 902. The trial court ruled only after allowing the defense an adequate opportunity to meet its burden:
“So far the defendant has not established sufficient record by testimony, affidavit, medical report or their own statements to trigger a competency hearing. The appointment of the Western State experts yesterday was an attempt to be, in my opinion, extremely fair to Mr. Lord, to allow, at least before the Court even made a threshold decision about whether to hold a competency hearing, some medical evidence with which to proceed.”
Id. (emphasis added). Such opportunity was preempted here because the ultimate threshold standard was incorrectly applied to the preliminary request for more time to gather evidence.23
Denial of a motion for continuance is not grounds for reversal unless it prejudices the defendant. State v. Eller, 84 Wn.2d 90, 96, 524 P.2d 242 (1974). But here the prejudice was patent, and denial was particularly egregious when the court applied the wrong standard. See supra note 22. A short continuance was not too much to ask to assure that a man on trial for his life is competent to stand trial. That is fundamental.
2. A Factual Basis Existed for Woods’s Incompetence
The majority’s recognition the trial court should have granted the continuance if there were a “factual basis” to doubt Woods’s competency, majority at 605, is obscured by its satisfaction with the trial court’s meager attempt to determine Woods’s competency before trying him for his life:
THE COURT: I need to know, Mr. Sheehan has alleged that you are ill. Are you?
MR. WOODS: No.
*629THE COURT: Are you thinking clearly?
MR. WOODS: Yes.
THE COURT: Are you depressed?
MR. WOODS: No, sir.
THE COURT: Do you know what I mean by that?
MR. WOODS: Yes, I do.
Verbatim Report of Proceedings (VRP) at 5736. Of course, it is bootstrapping at best to rely upon the declarations of a possible incompetent to prove his own competence. Neither the court nor Woods is qualified to adequately evaluate Woods’s mental health as even the most capable professional would be hard-pressed to divine his mental status on the basis of four monosyllabic answers to four suggestive questions. These answers do not indicate substantial understanding of the questions, nor did the court make any further effort to establish his level of comprehension or mental competence. The competency statute requires the appointment of experts—so presumably this is a subject to be enlightened by more than lay opinion. See RCW 10.77.060(1)(a) (ordering court to appoint at least two experts where there is reason to doubt defendant’s competency).
The majority justifies its reliance on the admittedly brief colloquy by the “dearth of other indicia of incompetence.” Majority at 607. The majority also recognizes Woods’s lack of memory may suggest incompetence, but says it does not equate with a threshold showing of an incompetent mental state “without more.” Majority at 607.
I submit the majority’s position is a house of cards, permitting erroneous denial of a reasonable request to gather more information on Woods’s mental status, then seizing upon the resulting lack of additional information to impeach existing credible evidence which calls his competence into doubt. The sanctity of human life demands more than “the dearth” of consideration the majority gives it.
The majority’s reliance on pretrial mental evaluations is also sorely misplaced. Majority at 607. Woods’s mental *630ability to stand trial is not necessarily determinative of whether, based on his reaction to the guilty verdict, Woods’s attorneys should have been given time to assess whether he was competent to assist in his own defense in that phase.
The majority is dismissive of Woods’s decision to forgo presentation of mitigation evidence, citing State v. Sagastegui, 135 Wn.2d 67, 954 P.2d 1311 (1998) for the proposition a defendant may have legitimate reasons for doing so. Majority at 605-06. Standing alone, the decision to forgo presentation of mitigation may not categorically demonstrate incompetence; however whatever legitimate reasons may exist, Woods must be competent to effectively act upon them. Viewed in the larger context of his memory loss and the all-too-brief colloquy “establishing” his competence, the failure to offer mitigating evidence raises still another doubt of competence. Taken as a whole the evidence more than established the factual basis necessary to grant a mere continuance.
Ill
Implied Waiver of Mitigation Evidence
While other jurisdictions debate which requirements must be included in a colloquy for a valid waiver, our majority still questions whether such a colloquy is required at all—and concludes it is not. The majority’s willingness to infer waiver of something as important as the right to present mitigation evidence is disturbing where a life hangs in the balance, particularly when we could be assured of a knowing and intelligent waiver by the most minimal of procedural safeguards.
A capital defendant has the statutory and constitutional right to present relevant mitigation evidence during sentencing. Majority at 608. Moreover the presentation of such mitigating evidence is necessary for our subsequent proportionality review which includes consideration of similar cases, including mitigating circumstances. See RCW 10.95-*631.130(2)(b) (requiring court to consider “[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant”); State v. Elmore, 139 Wn.2d 250, 305, 985 P.2d 289 (1999) (“[W]e consider the circumstances of the crime along with any mitigating factors and determine whether a rational jury could have concluded the mitigating circumstances do not outweigh the circumstances of the crime.”), cert. denied, 531 U.S. 837 (2000).
Nonetheless, according to the majority, a trial court need not engage in a colloquy to ensure a capital defendant knowingly, intelligently, and voluntarily chooses not to put on the mitigation evidence which may spare his life. Majority at 609. Because it is a decision “influenced by trial strategy,” we are told the court need not ask directly but may infer knowing and intelligent waiver of this right even where, as here, there is reason to doubt the defendant’s underlying competency. Id. at 609.24
The sparse colloquy here consisted of three questions and monosyllabic answers from Woods:
THE COURT: .... Do you understand that in the death penalty sentencing phase, this next phase we’re talking about, you have a right to make an unsworn statement to the jury, that is your right of allocution?
MR. WOODS: Yes.
THE COURT: You also understand that in this phase of the trial you have the right to present mitigation testimony?
MR. WOODS: Yes.
THE COURT: Testimony to persuade the jury that the right choice is leniency, from your perspective?
MR. WOODS: Yes.
*632VRP at 5737.25 Although even shorter than the admittedly brief colloquy allegedly establishing competency, the majority is satisfied this exchange demonstrates a knowing and intelligent waiver of such an important right, even where competency has been called into question. Indeed, the majority believes such an exchange is not necessary at all—waiver can be inferred.
The majority provides no compelling policy reasons to justify its decision—no judicial economy argument, no parade of horribles—because there are none. At its core, this is simply a question of whether the trial court should be required to take a few extra minutes to establish on the record whether the defendant knowingly and intelligently made a decision to waive a constitutional right which may result in his death. The majority answers that question in the negative, content to abdicate the public responsibility to appropriately impose the death penalty to defense counsel, and wash its hands of the matter.
After the anemic analysis supporting inferred waiver, the majority goes on in dicta to propose an equally flawed middle ground. All the while saying no colloquy is required, the majority erroneously argues this case would pass constitutional muster even if one were. The majority cites the mandatory procedures of other states, but does not require them here, and is forced to adulterate those standards in order to make our case fit into a defensible rubric of any sort. The majority’s nonmandatory two-part test is a far cry from the procedures employed in the very cases it cites for support.
For example, Fitzgerald v. State, 1998 OK CR 68, 972 P.2d 1157 required a defendant: (1) to understand the difference between life and death; (2) to understand and appreciate the vital importance of mitigating evidence in capital proceedings; and (3) to voluntarily and intelligently *633waive all right to present mitigating evidence. Although the defendant’s competence “was not questioned at any point in the proceedings, .... [n]othing in the record suggests [he] appeared incompetent or acted in an unusual manner,... and no evidence introduced then or at any other proceeding cast doubt on [his] ability to make an intelligent and knowing waiver,” the waiver was held invalid because “it is not clear that Fitzgerald understood the purpose or importance of mitigating evidence.” Id. at 1163, 1173. The court said it required “such stringent procedures” before accepting waiver of mitigation evidence because “the Constitution requires individualized sentencing, and mitigating evidence is an important factor in ensuring this right.” Id. at 1173 (footnote omitted).
But here, unlike Fitzgerald, the defendant’s competency had been questioned—which should have raised greater cause for concern. Furthermore, here there were but three meager questions about mitigation evidence (and “yes” answers). The majority’s assertion that this satisfies the “stringent procedures” required by Fitzgerald is nonsense. The majority fails the test set forth in its own case.
Also invoked by the majority is Chandler v. Florida, which requires a five-part determination: (1) counsel must inform the court on the record of the defendant’s decision; (2) counsel must conduct an investigation for mitigating evidence; (3) counsel must indicate whether they reasonably believe the evidence could be presented; (4) counsel must say what the evidence would be; (5) the court must require the defendant to confirm on the record that counsel discussed these matters and he wishes to waive presentation of mitigation evidence against counsel’s advice. Chandler v. Florida, 702 So. 2d 186, 199-200 (Fla. 1997).
Chandler said the “primary reason for requiring this procedure was to ensure that a defendant understood the importance of presenting mitigating testimony.” Id. at 199. However, competency was not at issue and the waiver was upheld because the trial court properly followed the procedures. The judge established counsel had thoroughly dis*634cussed the defendant’s right to present mitigation, obtained the defendant’s clear and unequivocal waiver, and said, “ T am obliged to tell you by law that this could be a mistake because these people could very well put some favorable information before this jury to persuade them to recommend a life sentence, as opposed to a death sentence [.]’ ” Chandler, 702 So. 2d at 199-200.
In contrast, Woods’s competency had been challenged and the trial court failed to ensure even the most basic safeguards for knowing and intelligent waiver. The trial court never even established on the record that Woods himself wanted to waive his right to present mitigation evidence. Furthermore, the majority cites no discussion about any mitigation investigation, what the evidence would be, whether counsel specifically communicated that information to the defendant, whether counsel warned him about the consequence of waiver, whether the court warned him he might be making a mistake, or whether Woods had an adequate understanding of the critical role of mitigation evidence in a capital case. Once again, the majority disregards most of the requirements of its own case.
Finally, the majority cites State v. Ashworth, which held “a trial court must conduct an inquiry of the defendant on the record to determine whether the waiver is knowing and voluntary.” State v. Ashworth, 85 Ohio St. 3d 56, 706 N.E.2d 1231, 1237, cert. denied, 528 U.S. 908 (1999) (emphasis added). While Ashworth set forth seven required factors, the trial court here asked fewer than half that many questions! Moreover, our majority would permit that none be asked at all.
Ashworth mandated the court must: (1) inform the defendant of the right to present mitigating evidence; (2) explain what mitigating evidence is; (3) inquire and determine whether the defendant understands the importance of mitigating evidence; (4) inquire and determine whether he understands the use of such evidence to offset the aggravating circumstances; (5) inquire and determine whether he understands the effect of failing to present mitigation *635evidence; (6) inquire and determine whether he desires to waive the right to present mitigating evidence; and (7) make findings of fact as to the defendant’s understanding and waiver of rights. Ashworth, 706 N.E.2d at 1237. The court also said the trial court “should be cognizant of actions on the part of the defendant that would call into question the defendant’s competence,” requiring a competency hearing where there are “indicia of incompetence.” Id.
In Battenfield v. Gibson the Tenth Circuit recently said these requirements were “little more than commonsense and should have been substantially followed by the trial court.” Battenfield v. Gibson, 236 F.3d 1215, 1233 (10th Cir. 2001). The Battenfield court reversed the defendant’s death sentence because he did not have a proper understanding of the general nature of mitigating evidence or the specific types that might be available for presentation. Id. at 1231. Furthermore, “the trial judge’s questioning of Battenfield regarding his decision to waive was brief and, in our view, inadequate. The trial court failed to adequately determine that Battenfield had been provided sufficient information from [his attorney] to make a knowing choice.” Id.
But here the trial court violated at least five of the seven Ashworth requirements, failing to inquire or determine whether Woods understood the importance of mitigating evidence, the use of mitigation evidence to offset the aggravating circumstances, or the effect of failing to present mitigation evidence. The court even failed to inquire on the record whether Woods desired to waive his right to present mitigating evidence, much less make findings of fact as to the defendant’s understanding and waiver of rights. All of this occurred in a case which, unlike Ashworth, bore indicia of incompetence.
The majority cites numerous cases in which colloquies are required to waive the right to present mitigation evidence. Majority at 610. The elements of those colloquies, and the need to properly establish sufficient waiver on the record, are “little more than commonsense.” Battenfield, 236 F.3d at 1233. Sadly those vital determinations, and the *636common sense that accompanies them, are no longer required in our state.
Because “the penalty of death is qualitatively different from a sentence of imprisonment, however long .... there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976) (plurality opinion). More than lip service is required.
For these reasons I would vacate the death sentence.
State v. Dearbone, 125 Wn.2d 173, 177, 883 P.2d 303 (1994).
See, e.g., State v. Navone, 180 Wash. 121, 123-24, 39 P.2d 384 (1934) (“The second information was filed in the same proceeding as the first, and manifestly superseded the same. If the state should attempt to bring appellant to trial upon the first information, an appropriate remedy would doubtless be available to *624him.”); State v. Lindsey, 187 Wash. 364, 369, 61 P.2d 293 (1936), rev’d on other grounds, 301 U.S. 397 (1937) (quoting Navone); State v. Oestreich, 83 Wn. App. 648, 651, 922 P.2d 1369 (1996) (general rule is that an amended information supersedes the original); State v. Kinard, 21 Wn. App. 587, 589-90, 585 P.2d 836 (1978) (it has been uniformly held that the filing of an amended information constitutes an abandonment of the first information).
We must avoid the “erroneous and all-too-common assumption that the Constitution means what we think it ought to mean. It does not; it means what it says.” Apprendi v. New Jersey, 530 U.S. 466, 499, 120 S. Ct. 2348, 2367, 147 L. Ed. 2d 435 (2000) (Scalia, J., concurring).
We also rejected liberal construction of RCW 10.95.040 in Dearbone, 125 Wn.2d at 182.
State v. Lord, 117 Wn.2d 829, 888, 822 P.2d 177 (1991). We will “more carefully review the factual basis upon which the trial court relied to ensure that the ruling complies with that [abuse of discretion] standard.” Id.
By effectively ending further inquiry into Woods’s competency, the court’s decision also calls the validity of the subsequent “knowing and intelligent” waiver into question. If the continuance had been granted and Woods ultimately proven incompetent, the waiver would obviously have been illegitimate (and irrelevant).
The majority cites State v. Thomas, 128 Wn.2d 553, 559, 910 P.2d 475 (1996), a possession of stolen property case where we concluded the right to testify is among the category of rights for which no on-the-record waiver is required. However, whether one waives his right to remain silent by taking the stand or waives his right to self-representation by appearing with counsel has little or nothing to do with the court’s satisfying itself a defendant has knowingly and intelligently waived his right to present mitigation evidence in a death penalty proceeding where the defendant’s competency has been raised as an issue.
Unfortunately, such bare colloquies appear to have been the norm throughout this case. See supra at 628-29 (Woods deemed competent based on four monosyllabic answers to four suggestive questions).