IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
GLENDA FAYE CUMMINS,
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.
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
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
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.
Cummins contends the court misapplied the law of self-defense by improperly
See Report of Proceedings (RP) (Aug. 5, 2010) at 213.
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.
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
Wash. Const. art. I, § 3; In re Winship, 397 U.S. 358, 363-64, 90 S. Ct. 1068,
25 L. Ed. 2d 368 (1970).
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.
Clerk’s Papers at 20.
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
Clerk’s Papers at 18.
Clerk’s Papers at 17.
See State v. Studd, 137 Wn.2d 533, 549, 973 P.2d 1049 (1999).
State v. Adams, 91 Wn.2d 86, 93, 586 P.2d 1168 (1978).
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).
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
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.
State v. Bandura, 85 Wn. App. 87, 97, 931 P.2d 174 (1997).
Strickland, 466 U.S. at 687; State v. Nichols, 161 Wn.2d 1, 8, 162 P.3d 1122
State v. McFarland, 127 Wn.2d 322, 336-37, 899 P.2d 1251 (1995).
In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).
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).
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
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 midrange 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.
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.
RP (Aug. 30, 2010) at 329.