State v. Bugai , 30 Wash. App. 156 ( 1981 )

Ringold, A.C.J.

(dissenting) — I agree with the majority that the claim of ineffective assistance of counsel is an important issue. I cannot agree that the personal restraint petition "is admirably suited" to resolve this important issue when the claim is based on matters outside the record. There is a more expeditious and just procedure that this court should adopt.

Bugai alleges that he consistently demanded a jury trial but that he was coerced into a jury waiver by his counsel. If true, this could demonstrate ineffective assistance of counsel and denial of a fair and impartial trial. His allegation is arguably corroborated by the record because the jury waiver was not filed until the close of final argument and the verbatim report reveals no personal examination of Bugai by the trial court concerning his waiver. If his counsel were the source of coercion, counsel's examination of Bugai at the time of waiver would be insufficient to assure that the defendant acted voluntarily.¹

Previously, we have recognized two ways to break the vicious circle of an inadequate record created by alleged ineffective counsel. First, if the defendant secures new counsel before judgment, he can pursue the issue in a motion for a new trial. Second, when new counsel is not secured until after judgment, the defendant must file a personal restraint petition and seek a hearing on his claim after completion of his appeal because we will not usually consider matters outside the record on appeal. See State v. Wilson, 29 Wn. App. 895 (1981); State v. King, 24 Wn. App. 495, 601 P.2d 982 (1979); State v. Jury, 19 Wn. App. 256, 576 P.2d 1302 (1978); State v. White, 5 Wn. App. 283, 292-93, 487 P.2d 243 (1971) (Williams, J., dissenting), rev'd on other grounds, 81 Wn.2d 223, 500 P.2d 1242 (1972); State v. Humburgs, 3 Wn. App. 31, 472 P.2d 416 (1970). The majority perpetuates this unnecessary dilemma and, by following the traditional approach, my colleagues create another vicious circle for those relegated to the uncertainty of obtaining a hearing on a personal restraint petition.

Our cases properly express a great reluctance to grant personal restraint relief because the fundamental constitutional remedy for one convicted of a crime is the process of appeal. In re Haynes, 95 Wn.2d 648, 628 P.2d 809 (1981). Courts also properly express considerable reluctance to find ineffective assistance of counsel because experience demonstrates that such claims, though frequently and easily made, are usually frivolous. The combination of these factors creates a small but nonetheless serious danger that a bona fide claim of ineffective assistance of counsel based on matters outside the record will slip through the cracks in the system. To assure meaningful review of a claim of ineffective assistance of counsel, we should address the merits by allowing counsel to create a record during the pendency of the appeal.

The practice of relegating the issue to a personal restraint petition was developed before recognition that CR 60(b) (11) is available for motions to vacate judgment in criminal actions. State v. Scott, 92 Wn.2d 209, 595 P.2d 549 (1979). When new counsel on appeal has a good faith belief that a claim of ineffective assistance of counsel exists based on matters dehors the trial court record, the appropriate procedure during pendency of the appeal is to move to vacate under CR 60(b)(11). The motion should be pursued even while the appeal is being perfected. If a trial court were prepared to grant such a motion, the defendant would seek leave in the appellate court for the trial court to act. RAP 7.2(e). If the trial court did not grant relief, the appellate court would have a record to review. If the motion to vacate were not filed, the appellate court would not consider a claim of ineffective assistance based on matters not of record and would not remand for an evidentiary hearing based on affidavits attached to the brief or added to the appellate record. Finally, personal restraint relief would be barred in most cases because the issue could have been raised on appeal. In re Haynes, supra. This procedure would eliminate the dilemma facing defendants with claims based on matters beyond the record, assure consideration of just claims without delaying appellate disposition, and reduce the overall appellate workload by requiring summary rejection of this issue in most personal restraint petitions.²

While Bugai has not followed this procedure, we should remand his case for two reasons. First, there has been considerable uncertainty concerning the appropriate procedure in this area. Second, the affidavits attached to his brief raise a constitutional issue that is arguably corroborated by the record. See State v. Harvey, 5 Wn. App. 719, 491 P.2d 660 (1971). I would limit the remand to the coercion issue because I find no merit to Bugai's other claims of ineffective assistance.

For the foregoing reasons, I would remand for a hearing to determine whether Bugai was coerced by his defense counsel into waiving a jury trial.

Reconsideration denied October 5, 1981.

Review denied by Supreme Court December 18, 1981.

1 The colloquy engaged in immediately before the excerpt quoted by the majority also indicates that the waiver form was possibly not signed until November 29 even though the signature date was November 28.

The Court: May I have the exhibits, please? Counsel, for the record, we have not had a stipulation of fact that the jury was waived in this trial.

Ms. Antonik: I thought Counsel filled that out in Presiding. Do we have a' form?

The Court: Has that been signed?

Mr. Neal: No, I don't think so.

The Court: Will you sign it when one is prepared and for the record waive the jury trial at this time?

Mr. Neal: Yes. Isn't there a form? I thought there was a form for waiver of jury.

Ms. Antonik: We have them in Presiding, Your Honor.

Mr. Neal: I will take care of that, Your Honor. . . .

2 While we have the authority to direct that additional evidence be taken by the trial court before reaching our decision on the merits, my proposal eliminates the need to use this authority because of the availability of an adequate remedy through the postjudgment motion procedure. RAP 9.11(a)(4). As an alternative we could deem the CR 60(b)(ll) procedure inadequate and exercise our authority to remand for a hearing. This alternative, however, is more cumbersome.