Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                      DIVISION ONE

STATE OF WASHINGTON,                        )       No. 65944-8-I
                                            )
                      Respondent,           )
                                            )
              v.                            )
                                            ) 
GLENDA FAYE CUMMINS,                        )       UNPUBLISHED OPINION
                                            )
                      Appellant.            )       FILED: March 12, 2012
                                            )

       Ellington, J.  --  Following a bench trial, Glenda Cummins was convicted of 

assault in the third degree for hitting her adult daughter in the head with a glass. The 

court sentenced Cummins within the standard range.  Cummins now contends the court 

misapplied the law of self-defense by imposing upon Cummins a duty to retreat, and 

that she was deprived of effective assistance of counsel because her defense attorney 

did not request an exceptional sentence below the standard range.  We affirm.

                                       BACKGROUND

       On December 12, 2009, Cummins and her 25-year-old daughter, Brittenee 

Buckner, got into a fight.  The skirmish began in the kitchen, where Buckner pushed 

Cummins.  Cummins successfully fended her off by either pushing or hitting her with a 

broom.

       Cummins wanted Buckner out of the house, so Buckner went downstairs to her 

bedroom to pack her things.  Cummins said she followed Buckner downstairs to make  

No. 65944-8-I/2

sure she didn't take anything that didn't belong to her.  She said Buckner was throwing 

things around, destroying the bedroom, and cursing.  Cummins testified that Buckner 

hit her with her fist on the right side of the head hard enough that Cummins "saw 
stars."1 Cummins grabbed a glass from the dresser next to her and struck Buckner in 

the head with it.  

       Cummins called 911 to report that Buckner had hit her and she wanted her out of 

the house.  Officers Christopher Mast and Stan Adamski of the Auburn Police 

Department responded to the call.  Mast examined Cummins, but found no visible injury 

to her head, only a cut on her finger.  When Mast went downstairs to talk with Buckner, 

he saw a cut on the left side of her head and blood on her face.  Buckner was 

transported to Auburn Medical Center for treatment.

       The State charged Cummins with assault in the third degree. At trial, Cummins 

implied the physical difference between her and Buckner -- Cummins is about 5'7" and 

150 pounds; Buckner is about  5'3" and 230 pounds -- made her concerned for her own 

safety, and testified she struck Buckner in the head "[s]o that she would not harm me, 
take me down."2 The court found that, although Cummins may have feared for her 

safety, the force she used against Buckner was more than reasonably necessary.  

       Cummins was convicted of assault in the third degree and sentenced within the 

standard range to 60 days of home detention and 240 hours of community service.

                                        DISCUSSION

       Cummins contends the court misapplied the law of self-defense by improperly 

       1 See Report of Proceedings (RP) (Aug. 5, 2010) at 213.

       2 Id.

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imposing a duty to retreat.  She also argues she was deprived of effective assistance of 

counsel because her attorney did not request an exceptional sentence at sentencing.  

We disagree with both arguments.

                                         Self-Defense
       The State must prove every element of a crime beyond a reasonable doubt.3 It 

is a defense to the charge of assault that the force used was lawful.4 When a 

defendant raises the issue of self-defense, the unlawfulness of the force becomes 
another element of the offense the State must prove beyond a reasonable doubt.5  The 

use of force is lawful when used by a person who reasonably believes she is about to 
be injured and when the force is not more than necessary.6  "Necessary" means that no 

reasonably effective alternative to the use of force appeared to exist and the amount of 
force used was reasonable to effect the lawful purpose intended.7

       The court recognized the State's burden in this case, specifically stating, "[T]he 

State has the burden of proving beyond a reasonable doubt that the force used by the 
defendant was not lawful."8 It found that while Cummins reasonably believed she was 

about to be injured, the force she used against Buckner was unlawful because it was 

       3 Wash. Const. art. I, § 3; In re Winship, 397 U.S. 358, 363-64, 90 S. Ct. 1068, 
25 L. Ed. 2d 368 (1970).

       4 RCW 9A.16.020(3).

       5 State v. L.B., 132 Wn. App. 948, 952, 135 P.3d 508 (2006).  To relieve the 
State of the burden of proving the absence of self-defense is constitutional error which 
can be raised for the first time on appeal.  Id.

       6 Id.

       7 RCW 9A.16.010(1).

       8 Clerk's Papers at 20.

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more than reasonably necessary to prevent or attempt to prevent further injury.9  

       Cummins contends that, in applying the law of self-defense, the court improperly 

imposed a duty to retreat in finding that "reasonably effective alternatives to the use of 
force appeared to exist."10 She points to the court's finding regarding Cummins'

testimony that the size difference between her and Buckner caused her concern.  The 

court found this testimony not credible because "in spite of [the] earlier assault, Ms. 

Cummins continued the confrontation by going downstairs to her daughter's 
bedroom."11 But this finding merely explains the court's reasoning regarding Cummins'

credibility; it does not indicate the court imposed upon Cummins a duty to retreat.

       Cummins is correct that the law imposes no duty to retreat when a person is 
assaulted in a place she has a right to be,12 but her argument is moot here because

there is nothing suggesting the court imposed such a standard.  A judge conducting a 

bench trial is presumed to know and to apply the law, including the correct burden of 
proof as to the elements of the crime.13 Here, the record shows that the court in fact 

knew and applied the law of self-defense.

                               Effective Assistance of Counsel

       The state and federal constitutions guarantee a criminal defendant reasonably 
effective representation by counsel at all critical stages of a case,14 including 

       9 Clerk's Papers at 18.

       10 Id.

       11 Clerk's Papers at 17.

       12 See State v. Studd, 137 Wn.2d 533, 549, 973 P.2d 1049 (1999).

       13 State v. Adams, 91 Wn.2d 86, 93, 586 P.2d 1168 (1978).

       14 U.S. Const. amend. VI; Wash. Const. art. I, § 2; Strickland v. Washington, 466 
U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

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sentencing.15 To prevail on a claim of ineffective assistance of counsel, the defendant 

must show her attorney's performance fell below an objective standard of 

reasonableness based on consideration of all the circumstances, and that the deficient 
performance prejudiced the result.16 We engage in a strong presumption of effective 

representation and require a defendant to show the absence of legitimate strategic or 
tactical reasons for the challenged conduct.17 To show prejudice, a defendant must 

prove that, but for the deficient performance, there is a reasonable probability that the 
outcome would have been different.18  

       Cummins contends her attorney's failure to request an exceptional sentence 

constituted deficient and prejudicial representation.  She must show there were no 

legitimate strategic or tactical reasons for defense counsel's decision, and that he was 
prejudiced thereby.19

       Cummins faced a standard range sentence of one to three months in jail.  At 

sentencing, defense counsel presented a number of mitigating factors, including both 

personal factors and the facts that came out at trial which warranted a low end 

sentence.  Further, counsel successfully argued against the court imposing jail time at 

all, and convinced it to allow Cummins to serve her sentence on electronic home 

monitoring and by performing community service hours.  

       15 State v. Bandura, 85 Wn. App. 87, 97, 931 P.2d 174 (1997).

       16 Strickland, 466 U.S. at 687; State v. Nichols, 161 Wn.2d 1, 8, 162 P.3d 1122 
(2007).

       17 State v. McFarland, 127 Wn.2d 322, 336-37, 899 P.2d 1251 (1995).

       18 In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).

       19 State v. Rainey, 107 Wn. App. 129, 135, 28 P.3d 10 (2001); State v. 
Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996).

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       Given Cummins' standard sentencing range, it was strategically reasonable for 

her attorney to argue for the low end of the range and that she serve her sentence by 

means other than incarceration, rather than request a sentence below the standard 

range.

       Even if Cummins' attorney's decision was not strategic, Cummins cannot show 

a reasonable probability the court would have granted a request for a sentence below 
the standard range.20 As it was, the court took into account the mitigating factors the 

defense presented, noted that Buckner was "not fault free" and observed that the 
prosecution had "been an ordeal for Ms. Cummins."21 But the court imposed a mid-

range sentence, and showed no inclination toward imposing a sentence below the 

standard range.  Cummins cannot show she was prejudiced by her attorney's decision 

not to request an exceptional sentence.

       Affirmed.

WE CONCUR:

       20 Cummins attempts to draw a parallel between her own case and State v.
McGill, 112 Wn. App. 95, 47 P.3d 173 (2002).  In McGill, the court expressed a desire 
to impose a sentence below the standard range, but incorrectly believed it did not have 
authority to do so.  112 Wn. App. at 98.  This court held that defense counsel was 
ineffective for failing to inform the court of its proper scope of discretion in sentencing, 
and that this was prejudicial because the court was clearly interested in sentencing 
below the standard range.  Id. at 101-02.  Here, the court showed no such inclination.

       21 RP (Aug. 30, 2010) at 329.

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