State v. Bandura
| Citation | 85 Wn.App. 87,931 P.2d 174 |
| Decision Date | 14 February 1997 |
| Docket Number | No. 17559-2-II,17559-2-II |
| Court | Court of Appeals of Washington |
| Parties | The STATE of Washington, Respondent, v. Robert Michael BANDURA, Appellant. |
John A. Hays, Longview, WA, for appellant.
Thomas C. Duffy, Clark Co. Deputy Pros. Atty., Vancouver, WA, for respondent.
On the evening of February 27, 1993, Robert Michael Bandura, Shirley Ward, and Terry Knowles, Ward's boyfriend, were drinking heavily at Bandura's house. According to the State, Bandura hit Knowles without provocation. Ward stepped between them, and Bandura left the room.
Within a short time, Bandura returned with a machete. Ward intervened again, but moved aside after Bandura used the machete to inflict a small cut on her chest. Bandura then swung the machete at Knowles about ten times. Simultaneously, Bandura said he was going to kill Knowles. Knowles defended himself with a baseball bat, but nonetheless sustained a three to four inch gash on his head, several gashes on his left arm and hand, and the severance of his left little finger.
The State charged Bandura with first degree assault on Knowles (Count I) and second degree assault on Ward Count II). On March 5, Bandura appeared for arraignment with attorney James W. Sowder. Bandura pled not guilty, and the court set trial for April 19.
On March 26, Bandura moved to substitute attorney Steven W. Thayer for attorney Sowder. He also moved to continue the trial. The court granted both motions and reset trial for June 21.
On April 23, Bandura notified the court that he had discharged attorney Thayer due to "a number of disagreements." 1 Bandura said he was "actively engaged in the process of locating and retaining other counsel and expect[ed] to make financial arrangements to do so in the near future." 2 The court allowed Thayer to withdraw and appointed attorney Barry W. Brandenburg.
On May 25, Bandura moved for a continuance and the appointment of an investigator. The court granted both motions and reset trial for July 21.
On July 16, Bandura retained attorney Michael Foister. Three days later, he moved to substitute Foister for Brandenburg, and to again continue the trial date. The court granted both motions and reset trial for August 23.
Trial began on August 23. At the end of the evidence, attorney Foister proposed lesser included offense instructions allowing the jury to find Bandura guilty of second, third, or fourth degree assault on Count I, and third or fourth degree assault on Count II. Although Bandura was present in court at the time, he said nothing; thus, he neither consented nor objected on the record. The trial court gave the proposed lesser included offense instructions, and the jury used those instructions to find Bandura guilty of second degree assault on Count I and fourth degree assault on Count II.
On September 21, Foister filed a written motion for arrest of judgment or in the alternative for new trial. The motion alleged in part:
Defendant wishes present defense counsel to raise and preserve the issue of adequacy of defense counsel in representing his interest during the trial herein.... Defendant wishes to assert that he expressly forbid that a request for lesser included offense instructions be given as to Count I in his case.... Similarly, the defend[ant] wishes to assert that he expressly forbid that a request for lesser included offense instructions be given as to Count II in his case.... Further defendant wishes to request of the Court that current counsel be allowed to withdraw as attorney of record herein and that defendant be allowed to substitute a [c]ourt appointed counsel as to all future proceedings herein....[ 3
The motion ended with Foister's declaration, made under penalty of perjury, that the facts stated were true and correct to the best of his knowledge and belief.
At a hearing held the same day, Bandura orally asserted that he was unhappy with Foister and wanted Brandenburg instead. The court continued the matter for two days so Brandenburg could attend.
On September 23, Bandura and Foister were again present, but Brandenburg was not. Bandura announced to the court:
Your Honor, as far as I'm concerned, Mr. Foister has not represented me for some time now ... I have other counsel arranged to represent me as retained counsel that is awaiting the formal discharging of Mr. Foister by the Court so that that's possible.[ 4
Bandura went on to disclose that "other counsel" was attorney Daniel Lorenz, and that Lorenz would need a continuance to familiarize himself with the case.
The court denied yet another continuance and ordered that sentencing proceed that day. The court allowed Foister to withdraw before sentencing and required Bandura, over his objection, to represent himself at sentencing. The court summarily denied, without oral argument, the motion for arrest of judgment or new trial. 5 After hearing comments from the prosecutor, Bandura, and an attorney named Tilman Hasche, 6 the court imposed consecutive sentences of 41 months on the second degree assault conviction and 209 days on the fourth degree assault conviction, with credit for 209 days served to date.
A week after sentencing, Bandura asked the court to appoint counsel at public expense. The court responded by appointing Bandura's present attorney, John A. Hays.
On appeal, Bandura makes four claims that we will discuss. 7 Three, all of which we reject, arise from his post-trial motion for arrest of judgment or new trial. One, which we accept, involves the denial of counsel at sentencing.
Bandura first claims that the trial court violated his right to procedural due process when it denied him an opportunity to orally argue his post-trial motion. 8 Procedural due process, however, does not mandate oral argument on a written motion. 9 Rather, oral argument is a matter of discretion, so long as the movant is given the opportunity to argue in writing his or her version of the facts and law. Here, the trial court allowed Bandura to present his position in writing, and it did not abuse its discretion.
Bandura next claims that the trial court improperly denied him an evidential hearing on his post-trial motion. Absent that denial, he says, he would have proved that he had decided not to request lesser included offense instructions; that he had communicated his decision to Foister; that Foister disregarded his decision; and thus that Foister rendered ineffective assistance of counsel.
In In re Rice, 10 the Supreme Court explained the showing that must be made in order to obtain an evidential hearing on a personal restraint petition. It said:
Finally, we take this opportunity to explain more fully the showing petitioners must make to support a request for a reference hearing....
... If the petitioner's allegations are based on matters outside the existing record, the petitioner must demonstrate that he has competent, admissible evidence to establish the facts that entitle him to relief. If the petitioner's evidence is based on knowledge in the possession of others, he may not simply state what he thinks those others would say, but must present their affidavits or other corroborative evidence. The affidavits, in turn, must contain matters to which the affiants may competently testify....
In our view, these principles apply to post-trial motions as well as to personal restraint petitions. 11 Each of these proceedings involves similar issues, and each occurs after verdict in a criminal case. Moreover, the Supreme Court's rule on post-trial motions expressly requires that facts outside the record be shown by affidavit. CrR 7.6(a).
In this case, no one supplied the trial court with an affidavit, based on personal knowledge, that Bandura had told Foister not to request lesser included offense instructions. Although Foister swore that Bandura "wishes to assert that he expressly forbid that a request for lesser included instructions be given," Foister carefully and obviously refrained from endorsing the truth of Bandura's assertion, or from making any assertion of his own. No one else provided any information at all. In the face of nothing more than an artfully drafted motion, the trial court was not required to schedule or hold an evidential hearing.
Bandura next claims that even if there was no error in denying an evidential hearing, the record as presently constituted shows ineffective assistance of counsel. His premise is that he had a right not to be tried on lesser included offenses until such time as he knowingly and voluntarily consented on the record. Alternately phrased, his premise is that he had a right to be tried on the specific crime charged, until such time as he chose to waive that right on the record. Reasoning from that premise, he argues that the record shows no consent or waiver; that Foister nonetheless requested lesser included offense instructions; and thus that Foister rendered ineffective assistance.
The constitution does not support Bandura's premise. Although an accused has a constitutional right to notice of the crime with which he or she is charged, 12 this right does not include a right to be tried for only the specific crime charged, or, concomitantly, a right not to be tried for a lesser included offense. Because a defendant is deemed to have notice not only of the specific crime charged, but also of any lesser included offenses, 13 the right to notice is only a right to be tried on a charge "contained in" the indictment or information. 14 It precludes the State from charging one offense and then convicting "of a separate and distinct or a nonincluded offense." 15 It does not, however, preclude the State from charging one offense and then convicting of a lesser included offense.
Additionally, history and the caselaw refute Bandura's premise. "At common law the jury was permitted to find the defendant guilty of any lesser offense necessarily included in the offense charged."...
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...simply state what he thinks those others would say but must present their affidavits or other corroborative evidence. State v. Bandura, 85 Wash.App. 87, 93, 931 P.2d 174 (quoting In re Rice, 118 Wash.2d at 885-86, 828 P.2d 1086), review denied, 132 Wash.2d 1004, 939 P.2d 215 (1997). The aff......
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...466 U.S. 668, 685, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Sentencing is a critical stage in a criminal case. State v. Bandura, 85 Wn.App. 87, 97, 931 P.2d 174 (1997). In most cases, the law presumes an attorney's representation was competent and a defendant bears the burden of demonstrating......
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...466 U.S. 668, 685, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Sentencing is a critical stage in a criminal case. State v. Bandura, 85 Wn. App. 87, 97, 931 P.2d 174 (1997). In most cases, the law presumes an attorney's representation was competent and a defendant bears the burden of demonstra......