Opinion
No. 94198-0
08-21-2017
In the MATTER OF the Personal Restraint of: Jose Luis SANCHEZ, Jr., Petitioner.
RULING DENYING REVIEW
¶ 1 A jury found Jose Sanchez guilty of two counts of aggravated first degree murder, two counts of attempted first degree murder, one count of first degree robbery, and one count of first degree burglary, all committed while armed with a firearm. In a separate but related bench trial, the court found Mr. Sanchez guilty of first degree unlawful possession of a firearm. Division Three of the Court of Appeals affirmed the judgment and sentence on direct appeal, and this court denied review. Mr. Sanchez timely filed a personal restraint petition in the Court of Appeals, which a panel of judges denied in a published opinion. In re Pers. Restraint of Sanchez, 197 Wn.App. 686, 391 P.3d 517 (2017). The facts are well known to the parties and are discussed in detail in the court's direct appeal decision, which was published in part. State v. Sanchez, 171 Wn.App. 518, 288 P.3d 351 (2012). Mr. Sanchez now seeks this court's discretionary review. RAP 16.14(c).
¶ 2 To obtain this court's review, Mr. Sanchez must show that the acting chief judge's decision conflicts with a decision of this court or with another Court of Appeals decision, or that he is raising a significant constitutional question or an issue of substantial public interest. RAP 13.4(b); RAP 13.5A(a)(1), (b). And to obtain postconviction relief generally, Mr. Sanchez must show that he was actually and substantially prejudiced by constitutional error or that his trial suffered from a non-constitutional error that inherently resulted in a complete miscarriage of justice. In re Pers. Restraint of Lord, 152 Wn.2d 182, 188, 94 P.3d 952 (2004). If Mr. Sanchez ultimately fails to present an arguable basis for collateral relief in law or fact given the constraints of the personal restraint petition procedure, his collateral challenge must be dismissed as frivolous under RAP 16.11(b). In re Pers. Restraint of Khan, 184 Wn.2d 679, 686-87, 363 P.3d 577 (2015).
¶ 3 Mr. Sanchez argues that the Court of Appeals decision conflicts with United States Supreme Court decisions and decisions of this court holding that the denial of counsel at arraignment is a structural error not subject to harmless error analysis, and that this is a significant constitutional issue of substantial public interest. Alternatively, Mr. Sanchez contends that his trial counsel was ineffective in failing to appear at the arraignment and object to media filming of the proceedings that resulted in broadcasts of Mr. Sanchez to the public and the victim. Mr. Sanchez's arguments merit neither this court's discretionary review nor postconviction relief.
¶ 4 First, Mr. Sanchez contends that the trial court committed structural error by allowing him to be arraigned without the presence of counsel. See Hamilton v. Alabama, 368 U.S. 52, 54-55, 82 S.Ct. 157, 7 L.Ed. 2d 114 (1961) (holding that Alabama arraignment was critical stage of criminal proceeding where right to counsel applied). This court has held that failure to appoint counsel for a preliminary hearing at which the defendant pleaded not guilty and where nothing substantive occurred did not constitute denial of the right to counsel. State v. Jackson, 66 Wn.2d 24, 29-30, 400 P.2d 774 (1965). Whether the pretrial hearing is called a preliminary hearing or an arraignment or an appearance is irrelevant. "The name of the stage of the criminal proceeding is not controlling." Id. at 28. If there is no possibility the defendant will be prejudiced by the pretrial hearing in the absence of counsel, there is no constitutional violation. Id. In contrast, "[a] complete denial of counsel at a critical stage of the proceedings is presumptively prejudicial and calls for automatic reversal." State v. Heddrick, 166 Wn.2d 898, 910-11, 215 P.3d 201 (2009); United States v. Cronic, 466 U.S. 648, 658-59, 104 S.Ct. 2039, 80 L.Ed. 2d 657 (1984).
¶ 5 Here, the trial court merely conducted an informal pretrial hearing. It was conducted with a group of defendants, and the court explained that each defendant had been appointed counsel if needed. The court stated that it would call each defendant, the prosecutor would hand them a copy of the charging document, and the court would ask each defendant if he understood the charges and had any questions. If there were no questions, the court would provide the defendant an order with the next two court dates. When the court called Mr. Sanchez, no attorney was present. Mr. Sanchez said that he understood the charges and had no questions. Mr. Sanchez was never asked to enter a plea, but the court apparently entered blanket not guilty pleas for all of the defendants at the group arraignment hearing. The State subsequently twice amended the charges, and Mr. Sanchez never sought to revoke his not guilty plea or to plead an insanity defense.
¶ 6 Under these circumstances, the Court of Appeals correctly held that the pretrial hearing was not a critical stage of the prosecution. No irrevocable plea was entered, no evidence was submitted, and no admissions were made. The Court of Appeals applied the correct and long-established legal test for determining whether a pretrial hearing was a critical stage of the proceedings. Because it was not a critical stage, there was no error, much less structural error, in conducting the hearing outside of the presence of counsel.
¶ 7 Mr. Sanchez contends that if the proceeding was not structural error, it was still an instance of ineffective assistance for counsel to fail to represent him at the pretrial hearing where the media broadcast his arraignment. He argues that counsel should have been present and could have objected to the broadcast, which was prejudicial in that the broadcast allowed the victim to identify Mr. Sanchez.
¶ 8 To succeed on this claim, Mr. Sanchez must show both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). Scrutiny of counsel's conduct is highly deferential, and courts will indulge in a strong presumption of reasonableness. State v. Garrett, 124 Wn.2d 504, 518-19, 881 P.2d 185 (1994). Deficient performance is not shown by matters that go to trial strategy or tactics. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). To show prejudice, Mr. Sanchez must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). If Mr. Sanchez fails to establish either element of his ineffective assistance claim, this court need not address the other element. Hendrickson, 129 Wn.2d at 78.
¶ 9 Here, as the Court of Appeals noted, the killings had generated substantial media interest. Mr. Sanchez avers that he appeared at the arraignment in jail clothes and shackles and that there were news media and cameras present. But the report of proceedings does not mention the presence of any media or broadcasting. The victim had initially failed to pick Mr. Sanchez out from a photo array, but later stated after his arrest that she recognized him from the news reports.
¶ 10 Mr. Sanchez cannot possibly demonstrate prejudice, even assuming counsel was unreasonable for failing to appear and object to the media presence. He speculates that the victim failed to recognize him until she saw media broadcasts of his arraignment. But Mr. Sanchez fails to present evidence that the victim identified him from news media photographs obtained at the arraignment. The record shows only that the victim told police that she first recognized him from the news after she was out of the hospital. The news media had extensively covered the case by that point, and it is not clear from the record what photograph or footage the victim saw that led to her recognition. The news media could have broadcast a booking photo from the jail or from some other source. And at trial the victim testified that she did not recall seeing Mr. Sanchez in the news but was positive of her identification in court that he was the shooter. Because Mr. Sanchez has no evidence of prejudice from counsel's failure to object to news media presence at the hearing, the Court of Appeals correctly found no merit to Mr. Sanchez's argument on this issue.
¶ 11 The motion for discretionary review is denied.