State v. Breitung
173 Wash. 2d 393
Wash.2011Background
- Breitung was convicted of two counts of second degree assault and one count of unlawful possession of a firearm.
- The Court of Appeals reversed the assault convictions for ineffective assistance of counsel and reversed the firearm possession conviction for failure to provide RCW 9.41.047(1) notice.
- Breitung claimed his counsel pursued an all-or-nothing strategy by not requesting lesser-included offense instructions.
- The State argued defense counsel acted within strategic discretion and that Strickland standards apply.
- RCW 9.41.047(1) requires oral and written notice that a defendant is prohibited from possessing firearms after conviction; Minor discussed remedies for notice violations.
- The Supreme Court reinstated the assault convictions and vacated the unlawful possession conviction due to lack of proper notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance for not requesting lesser offenses | Breitung | Breitung | No deficient performance; Strickland presumption upheld. |
| RCW 9.41.047(1) notice failure invalidating possession conviction | Breitung | State | Reversed due to lack of notice; unlawful possession conviction vacated, assault affirmed. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (Supreme Court 1984) (establishes two-prong test for ineffective assistance)
- State v. Hassan, 151 Wn. App. 209 (Wash. App. 2009) (tactical decisions can be reasonable; three-factor test rejected)
- State v. Minor, 162 Wn.2d 796 (Wash. 2008) (notice requirements for firearm prohibition; remedy for violation discussed)
- State v. Grier, 171 Wn.2d 17 (Wash. 2011) (reaffirmed Strickland standard and rejected lower court’s three-prong test)
- State v. Breitung, 155 Wn. App. 606 (Wash. App. 2010) (three-factor test for lesser-included offenses criticized)