State of Washington v. Timothy John Schlangen ( 2020 )

FILED
AUGUST 18, 2020
In the Office of the Clerk of Court
WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 36624-3-III
Respondent, )
)
v. )
)
TIMOTHY JOHN SCHLANGEN, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, A.C.J. — Timothy Schlangen alleges that his conviction for second
degree unlawful possession of a firearm was tainted by ineffective assistance of counsel.
The State agrees, as do we. The conviction is reversed and the case remanded for a new
trial.
FACTS
Little need be said about the facts of this case. Schlangen stood trial before a jury
in the Klickitat County Superior Court after law enforcement discovered a gun in the
vehicle he was driving. He told officers that he had purchased the vehicle the night
No. 36624-3-III
State v. Schlangen
before from his aunt and that everything inside belonged to her. He defended the case on
the basis that he had no knowledge of the weapon’s presence.
The defense sought, and received, an instruction on unwitting possession. The
standard instruction advised jurors that Mr. Schlangen bore the burden of proving that his
possession was unwitting. Both parties argued in closing that Schlangen bore the burden
of proof. The prosecutor also questioned the failure of the aunt to testify in support of
Schlangen.
The jury convicted Mr. Schlangen. He timely appealed to this court. A panel
considered his appeal without conducting oral argument.
ANALYSIS
Mr. Schlangen argues that his counsel provided ineffective assistance and that the
prosecutor committed misconduct by referring to the absence of the aunt.1 Because the
first issue is dispositive, we need only address it.
1
The parties knew that multiple arrest warrants were outstanding for the aunt and
defense counsel told the court she refused to appear due to fear of arrest. However, no
evidence of the reason for her absence was placed before the court or the jury, and there
was no lawful reason given (e.g., a privilege) for her refusal to testify. The defense was
free to compel her presence. In the unlikely event that warrants are still outstanding at
the time of the retrial, this matter is best resolved in a motion-in-limine brought by either
the defense (to preclude argument if there is evidence of a lawful reason for
nonappearance) or by the State (perhaps by seeking a missing witness instruction).
2
No. 36624-3-III
State v. Schlangen
The Sixth Amendment guarantee of counsel requires defense counsel to perform
to the standards of the profession. Failure to live up to those standards will require a new
trial when the client has been prejudiced by counsel’s failure. State v. McFarland, 127
Wash. 2d 322, 333-335, 899 P.2d 1251 (1995). To prevail on a claim of ineffective
assistance, the defendant must show both that his counsel erred and that the error was so
significant, in light of the entire trial record, that it deprived him of a fair trial. Strickland
v. Washington, 466 U.S. 668, 690-692, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
The Strickland standards are easily satisfied here. A previous decision of this
court is directly on point. State v. Carter, 127 Wash. App. 713, 112 P.3d 561 (2005). In
that case, defense counsel also successfully obtained an unwitting possession instruction
in an unlawful possession of a firearm case. Id. at 715-716. This court reversed the
ensuing conviction due to counsel’s action. Id. at 717-718. An unwitting possession
instruction that places the burden of proof on the defendant is proper in cases where the
State does not have a burden of proving knowledge. See State v. Cleppe, 96 Wash. 2d 373,
635 P.2d 435 (1981). In cases such as this where the State must prove knowing
possession, an unwitting possession instruction relieves the State of that burden by
switching the obligation to the defendant.
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State v. Schlangen
Accordingly, we agree with the parties that counsel performed ineffectively by
obtaining the unwitting possession instruction. The conviction is reversed.2
Reversed and remanded.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________
Korsmo, A.C.J.
WE CONCUR:
______________________________
Siddoway, J.
______________________________
Lawrence-Berrey, J.
2
We also need not consider Schlangen’s challenges to the legal financial
obligations since the judgment has been reversed. If convicted again and remains
indigent, the court may not impose discretionary financial obligations on him.
4