Facts:  Respondent Robert Breitung was convicted of two counts of second degree assault and one count of second degree unlawful possession of a firearm in the Superior Court for Pierce County after threatening two men with a firearm that it was unlawful for him to possess due to a prior conviction for domestic violence assault.  Breitung appealed his convictions, asserting that his attorney had been ineffective in failing to request a lesser included offense instruction to the jury and that he could not be convicted of unlawful possession of a firearm insofar as he had not been given sufficient notice that he was prohibited from possessing a firearm as a consequence of his conviction for domestic violence assault.  The Washington Court of Appeals reversed Breitung’s convictions, holding that his attorney had been ineffective and that he had not been provided the notice of his firearm prohibition that Washington Revised Code §9.41.047(1) requires.  The state of Washington appealed this decision to the Supreme Court of Washington.

Question(s):  Was Breitung denied effective assistance of counsel by his attorney’s failure to request a lesser included offense instruction to the jury?

Was Breitung provided insufficient notice of his firearm prohibition?

Conclusion:  Justice Charles W. Johnson’s opinion for a unanimous Court affirmed in part and reversed in part the Washington Court of Appeals.  The Court held that the decision by Breitung’s attorney not to request a lesser included offense instruction to the jury was a tactical decision consistent with the theory presented by the defense that no assault occurred.  Thus, the Court reinstated Breitung’s second degree assault convictions.  However, the Court affirmed the reversal of Breitung’s conviction for unlawful possession of a firearm, finding that as Breitung had been provided with neither written nor oral notice of his firearm prohibition, he had been provided with insufficient notice under §9.41.047(1).

Docket No. 84580-8 (from Court of Appeals Division II Case No. 38869-3)

Petitioner: State of Washington

(Counsel: Thomas Charles Roberts)

Respondent: Robert Breitung

(Counsel: Jennifer J. Sweigert)

Briefs:

Argument: Tuesday, October 11th, 2011

[Source: TVW, http://tvw.org]

Decided: Thursday, December 29th, 2011

Prevailing Party: State of Washington (Petitioner)

Vote: 9-0

Citation: Pending

Court: Madsen2 Court (2011)

Madsen

Johnson
(Majority)

Alexander

Chambers

Owens

Fairhurst

Johnson

Stephens

Wiggins

Opinion