                                                                           FILED
                                                                        MARCH 22, 2018
                                                                  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. 34904-7-111
                     Respondent,               )
                                               )
       V.                                      )
                                               )
DAVID PETE ALECK,                              )         UNPUBLISHED OPINION
                                               )
                     Appellant.                )

       KORSMO, J. -David Aleck appeals from convictions for second degree unlawful

hunting of big game and second degree unlawful possession of a firearm, arguing that his

trial counsel provided ineffective assistance by failing to assert a tribal hunting right

defense. Since the facts necessary to establish the defense are not present in the record

and since the defense would not apply to the unlawful possession charge, we affirm.

                                           FACTS

       Briefly stated, the charges arose from an incident where Mr. Aleck shot a deer on

a road in Klickitat County at a time when deer season was closed. The deer leaped a

fence onto private property, where it died. The property owners heard the gunshot and

reported the incident to law enforcement. Mr. Aleck was apprehended by fish and

wildlife officers as he drove away from the scene.
No. 34904-7-111
State v. Aleck


        Mr. Aleck testified that he is a member of the Yakama Tribe and that he knew the

road was outside of the reservation's borders and was not an "in-lieu" site on which tribal

members are entitled to hunt. Instead, he believed that the road was "open and

unclaimed" land on which a tribal member could hunt. His counsel did not propose a

jury instruction asserting the affirmative defense that he was exercising his treaty hunting

rights. However, counsel twice asked the court for such an instruction. The judge turned

him down, stating that a defendant's mistaken subjective belief did not authorize an

affirmative defense. Report of Proceedings (Nov. 10, 2016) at 88-89. The court gave an

example:

       If we had a thirty year old in here saying on the stand I thought that I could
       have consensual sex with a fifteen year old and that that was okay, we
       would allow the Defendant to make that comment from the stand as his
       opinion of what the law is, he would n·ever get an instruction to that effect
       and so forth and so on.
              A Defendant can always have a misapprehension of the law and
       express that, that's his rationale for doing it. That doesn't mean he gets a
       jury instruction.

Id. at 89.

       The court permitted the defense to argue Mr. Aleck's mistaken belief, but without

an affirmative defense instruction. The jury convicted Mr. Aleck on both counts as

charged. He timely appealed to this court. A panel considered the matter without

hearing argument.




                                             2
No. 34904-7-111
State v. Aleck


                                         ANALYSIS

       The sole issue presented by the appeal is whether or not defense counsel rendered

ineffective assistance by failing to present an affirmative defense instruction. On this

record, Mr. Aleck cannot establish that his counsel erred. Moreover, since the defense

would not be available to the unlawful possession count, he also cannot establish

prejudice with respect to that charge.

       The issue presented by this appeal is controlled by well settled law. With respect

to Mr. Aleck's status as a member of the Yakama Nation, the United States Supreme

Court has noted that "it has never been doubted that States may punish crimes committed

by Indians, even reservation Indians, outside of Indian country," including on lands

where tribes have reserved hunting and fishing rights. Organized Village ofKake v.

Egan, 369 U.S. 60, 75, 82 S. Ct. 562, 7 L. Ed. 2d 573 (1962); see also Nevada v. Hicks,

533 U.S. 353, 362, 121 S. Ct. 2304, 150 L. Ed. 2d 398 (2001) ("It is also well established

in our precedent that States have criminal jurisdiction over reservation Indians for crimes

committed . .. off the reservation.").

       An Indian going outside of the reservation is subject to nondiscriminatory state

laws unless there is express federal law to the contrary. United States v. Washington, 520

F.2d 676, 684 (9th Cir. 1975) (citing Mescalero Apache Tribe v. Jones, 411 U.S. 145,

148-149, 93 S. Ct. 1267, 36 L. Ed. 2d 114 (1973)). A treaty exemption is an express

federal law. However, the assertion of a treaty right as an affirmative defense must be

                                             3
No. 34904-7-111
State v. Aleck


pleaded by the defendant. State v. Moses, 79 Wn.2d 104,110,483 P.2d 832 (1971). To

establish the affirmative defense,the defendant must show by a preponderance of the

evidence (1) the existence of the treaty,(2) of which he is a beneficiary,and (3) that,as a

matter of law,the treaty bars him from the operation and enforcement of the hunting laws

and regulations. State v. Posenjak, 127 Wn. App. 41,48,111 P.3d 1206 (2005).

       The 1855 Treaty with the Yakama Nation ceded tribal land back to the federal

government but retained tribal hunting and fishing rights on the ceded land. State v. Jim,

173 Wn.2d 672,676,273 P.3d 434 (2012) (citing Treaty between the United States and

the Yakama Nation of Indians,arts. 1-3,June 9,1855,12 Stat. 951,953). This land later

became part of Washington State when it joined the Union in 1889. The Treaty also

permits hunting on "open and unclaimed lands," but does not extend to hunting on

privately owned lands. See State v. Chambers, 81 Wn.2d 929,934-936,506 P.2d 311,

cert. denied, 94 S. Ct. 447 (1973). "Open and unclaimed " lands has been interpreted to

mean lands that are publicly owned,including national forest service lands,and other

lands not settled or privately owned. State v. Buchanan, 138 Wn.2d 186, 209, 978 P.2d

1070 (1999).

       Similarly,the standards governing ineffective assistance of counsel claims also are

well settled. The Sixth Amendment to the United States Constitution guarantees the

effective assistance of counsel. Counsel's 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,

                                             4
No. 34904-7-III
State v. Aleck


127 Wn.2d 322, 334-335, 899 P.2d 1251 (1995). In evaluating ineffectiveness claims,

courts must be highly deferential to counsel's decisions. A strategic or tactical decision is

not a basis for finding error. Strickland v. Washington, 466 U.S. 668, 689-691, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984). Under Strickland, courts apply a two-prong test,

evaluating whether or not (1) counsel's performance failed to meet a standard of

reasonableness and (2) actual prejudice resulted from counsel's failures. Id. at 690-692.

When a claim can be disposed of on one ground, a reviewing court need not consider both

Strickland prongs. Id. at 697; State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726,

review denied, 162 Wn.2d 1007 (2007). If the evidence necessary to resolve the

ineffective assistance argument is not in the record, the claim is not manifest and cannot

be addressed on appeal. McFarland, 127 Wn.2d at 334. Typically, the remedy in such

situations is for the defendant to bring a personal restraint petition (PRP) so that additional

evidence can be added to the record. Id. at 338 n.5; State v. Norman, 61 Wn. App. 16, 27-

28, 808 P.2d 1159 (1991).

       The initial Strickland prong is dispositive here for a pair of reasons. First, counsel

did twice ask the court for an instruction, although nothing in our record shows whether a

written instruction was proffered. The court, as noted above, expressly rejected the

request since the only basis was the defendant's subjective belief that he could hunt on

the land. Counsel tried, but failed, to obtain the instruction. Having requested the

instruction from the court, counsel's performance was not deficient. Secondly, the claim

                                              5
No. 34904-7-III
State v. Aleck


fails due to the status of the record. There is no evidentiary support for the proposition

that the land on which Mr. Aleck was hunting constituted open and unclaimed lands. The

property owner testified that it was not open or unclaimed. Absent some affirmative

evidence that the land was open, the court had no basis for instructing on the potential

defense. 1

       For both reasons, Mr. Aleck has failed to show that his counsel performed

deficiently and his claim of ineffective assistance fails. However, there is an additional

reason that his ineffective assistance argument fails. The Treaty hunting right affirmative

defense would not extend to the unlawful possession of a firearm charge. As noted

previously, the State is entitled to enforce nondiscriminatory state laws unless there is

express federal law to the contrary. Washington, 520 F.2d at 684. That is the case here.

Even if Mr. Aleck was entitled to hunt where this incident occurred, he was not entitled

to possess a firearm. Preventing felons from possessing firearms is a nondiscriminatory

law that the State can legitimately enforce in this circumstance. Thus, even if counsel

should have sought an affirmative defense instruction, Mr. Aleck was not prejudiced on

the unlawful possession charge since the defense would not have applied to that count.

Any error was not prejudicial, so counsel did not perform defectively on that count.



       1
        If Mr. Aleck has contrary evidence concerning the nature of the land, he is free to
bring that evidence in a PRP. McFarland, 127 Wn.2d at 338 n.5; Norman, 61 Wn. App.
at 27-28.

                                             6
No. 34904-7-III
State v. Aleck


         Mr. Aleck has not satisfied his heavy burden of establishing that his counsel

performed deficiently to his prejudice. The convictions are affirmed. 2

         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.




WE CONCUR:

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         Lawrence-Berrey,                 .C.J.



       ' Pennell, J.




        Mr. Aleck asks that we waive costs in this appeal. The State agrees that waiver
         2

is appropriate. We thus order that no costs will be imposed.

                                                     7
