                                                                            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TIMOTHY JOHN SCHLANGEN,            )      UNPUBLISHED OPINION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

Wn.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 Wn. 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 Wn.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.




                                                3
No. 36624-3-III
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.
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