l 

l 

FILED 

JANUARY 26, 2017 

In the Office of the Clerk of Court 

WA State Court of Appeals, Division III 

COURT OF APPEALS, DIVISION III, STATE OF 

WASHINGTON 

In re the Matter of the Personal Restraint ) No. 32633-1-111 

of ) 

) 

) ORDER WITHDRAWING 

) OPINION 

) 

JOSE LUIS SANCHEZ, Jr. ) 

The court on its own motion finds that the opinion filed January 24, 2017, should 

be withdrawn; 

THEREFORE, IT IS ORDERED that the opinion filed January 24, 2017, is hereby 

withdrawn and a new opinion shall be filed this day. 

FOR THE COURT: 

GEORGEFRING 

CHIEF JUDGE 
FILED 

JANUARY 26, 2017 

In the Office of the Clerk of Court 

WA State Court of Appeals, Division III 

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

DIVISION THREE 

In re the Matter of the Personal Restraint 

of 

JOSE LUIS SANCHEZ, JR. 

) 

) 

) 

) 

) 

) 

No. 32633-1-111 

PUBLISHED OPINION 

LAWRENCE-BERREY, J. - Jose Luis Sanchez, Jr., seeks relief from personal 

restraint imposed for his 2008 Yakima County convictions of two counts of aggravated 

first degree murder and other felony crimes. The convictions stem from his participation 

in a February 20, 2005 home invasion robbery and execution-style shootings at the 

apartment of Ricky Causor and Michelle Kublic. The shootings killed Causor and the 

couple's 3-year-old daughter and wounded Kublic and their 18-month-old daughter. At 

trial, Kublic positively identified Sanchez as the shooter, as did Sanchez's codefendant 

Mario Mendez who previously pleaded guilty and testified for the State. Sanchez filed a 

direct appeal and this court affirmed the judgment and sentence. State v. Sanchez, 171 

Wn. App. 518,288 P.3d 351 (2012), review denied, 177 Wn.2d 1024 (2013). 
No. 32633-1-III 

Pers. Restraint of Sanchez 

In this timely filed personal restraint petition (PRP), Sanchez contends he is 

entitled to a new trial on grounds that ( 1) he was denied his right to counsel under the 

Sixth Amendment to the United States Constitution during a critical stage when he was 

arraigned without counsel, and (2) in the alternative, his counsel provided ineffective 

assistance by failing to appear and object to his being filmed by media at his arraignment 

proceeding. We disagree with his contentions and dismiss his PRP. 

FACTS 

Police arrested Sanchez on February 23, 2005, after acting on anonymous 

telephone tips that he was responsible for the Causor murders. The next day, he appeared 

for a single court hearing on two matters: ( 1) arraignment on an outstanding 2004 matter 

charging him with certain felonies, and (2) a preliminary appearance in the current 

murder case. The prosecutor was present but no attorney appeared for Sanchez. First 

addressing the 2004 matter, the court advised Sanchez of his rights, which he 

acknowledged he understood before requesting that the court appoint counsel. The 

prosecutor interjected that an attorney had already been appointed on the 2004 matter, but 

that Yakima County public defender/director of assigned counsel, Daniel Fessler, was 

requesting that the court appoint him on both matters. The court did so. The court then 

explained to Sanchez that he was being held under investigation on suspicion for first 

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No. 32633-1-111 

Pers. Restraint of Sanchez 

degree murder, attempted first degree murder, first degree robbery, and felon in 

possession of a firearm. Based on a police probable cause declaration showing that 

acquaintances of Sanchez had implicated him in the robbery and murders, the court found 

probable cause to believe Sanchez committed one or more crimes. The probable cause 

declaration also stated that "victim Michelle Kublic was shown a photo montage, which 

included 'Gato's' photo, whose name is Mario Mendez. She positively identified him as 

one of the males who entered her house and shot them." Pers. Restraint Pet., App. C, 

Deel. of Probable Cause at 6. The court set Sanchez's bail at $5 million and scheduled 

his arraignment for February 28. 

On February 28, 2005, the State formally charged Sanchez and Mendez (who still 

remained at large) with seven crimes including two counts of aggravated first degree 

murder, which carried a possible death penalty. That day, Sanchez and an unknown 

number of other defendants appeared in superior court for a group arraignment hearing. 

The court explained their rights and noted that each "has a lawyer appointed to represent 

you or you might have hired a private attorney." Pers. Restraint Pet., App. B, Report of 

Proceedings (RP) (Feb. 28, 2005) at 2-3. The court then explained the process for the 

arraignment hearing: 

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No. 32633-1-III 

Pers. Restraint of Sanchez 

[W]hen your name is called we'll ask you to step up to the counter in front 

of this microphone. The prosecutor will hand you a piece of paper called an 

information. That lists the charges. She will read that to you if you want 

her to read it out loud. You don't have to have it read out loud. 

After that, I'm going to ask you a couple of questions. I'm going to 

ask you if you understand the charges and if you have any questions about 

the rights I have just explained. 

If you don't have questions, I am going to hand you an order. On the 

order there is the next two dates that you need to be in court. One is for an 

omnibus hearing. The next is for your trial. 

Many of you have not had a chance to talk to your lawyer yet, if it's 

appointed counsel. You're [sic] lawyer is going to get a packet of 

information from the prosecutor's office in the next couple of days. They 

will schedule a time to come and meet with you. 

At the end of all this I'm going to hand you that order and ask you to 

sign the order at the bottom of the page. By signing the order you're not 

admitting that you have done anything wrong. It lets us know that you have 

gotten a copy of the paperwork today. 

Pers. Restraint Pet., App. B, RP (Feb. 28, 2005) at 3-4. 

The court then called Sanchez's case. The court's prior explanation of rights to the 

defendants included the right to counsel, but did not specify any right to have counsel 

present during the current hearing. No attorney appeared for Sanchez. The prosecutor 

recited the seven charges and gave Sanchez a copy of the information. Sanchez 

acknowledged to the court that he understood the charges, and he declined a full reading 

of the information. He said he had no questions about the rights previously explained to 

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No. 32633-1-III 

Pers. Restraint of Sanchez 

him. The court entered an order setting dates for the omnibus hearing and trial. Sanchez 

signed the order and received a copy. 

No one broached the subject of entering a plea during the arraignment. The court 

apparently entered summary not guilty pleas for Sanchez. No concerns regarding the 

arraignment procedure were ever voiced during the remainder of the pretrial and trial 

proceedings. 

The case was high profile in the community and had already generated 

considerable media coverage. In his declaration filed with this petition, Sanchez states he 

appeared at the arraignment without counsel and in jail clothes and shackles. He states 

"there were lots of news media people and cameras," and he "observed people 

photographing my face and filming the proceedings when I was in court that day." Pers. 

Restraint Pet., App. D at 2. He states he did not want to be filmed but did not know there 

was any way to prevent this from happening. The report of proceedings for the 

arraignment hearing is silent as to the presence of media. 

Meanwhile, Michelle Kublic had remained hospitalized for multiple gunshot 

wounds until she was released to her father's home on February 26. The following facts 

quoted from the direct appeal opinion detail Kublic's various initial descriptions of the 

perpetrators while in the hospital and shortly after her hospital release: 

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No. 32633-1-III 

Pers. Restraint of Sanchez 

Officer David Cortez of the Yakima Police Department attempted to 

interview Kub lie in the hospital intensive care unit the ... morning [ after 

the shooting]. She was medicated, was in obvious pain, appeared tired, and 

was slow to give answers. She told him the attackers were two Mexican 

men whom she believed arrived in an older, full-size, light-blue pickup 

truck that she noticed when walking out to her car the prior evening. 

Although Kublic would later describe the two gunmen and their roles 

differently, Officer Cortez's notes indicate that she told him the first had a 

wide nose and a lighter complexion and bigger build than the second, and 

that he wore a mask. She said the second gunman did not wear a mask; had 

a "sucked in" face; was thinner than the first; was small (she estimated 

about 5 feet 4 inches or 5 feet 5 inches tall); and was dingy looking with 

uncombed, matted hair .... She said the second had forced her from her 

vehicle and made her walk back to her apartment with a semiautomatic 

pistol to her head. He was the one who later shot Causor. She said Causor 

had taken the first gunman to another part of the apartment to give him what 

he wanted while she and the children stayed with the second. 

The next morning, February 22, Detective David Kellett, the lead 

investigator for the department, visited Kublic in the hospital, hoping with 

her assistance to create composite images of the gunmen. Kub lie looked 

sleepy and under the influence of medication, but was able to participate for 

about 45 minutes until pain and discomfort made her too tired to continue. 

In providing descriptions to the detective, Kublic initially did not 

differentiate between the two gunmen except to state that one wore a mask 

and one did not. She told the detective she did not get as good a look at the 

one with the mask but remembered well the face of the person who wore no 

mask. 

Detective Kellett then enlisted her assistance in preparing a 

computer-generated composite of the gunman she remembered best. Kublic 

described him as thin and gaunt, with long and unkempt straight hair, a thin 

or short mustache, and a dark Hispanic complexion. Detective Kellett 

never asked her whether he, or the other, was the shooter. When she 

reached a point at which she was in too much pain to continue, she told him 

that the depiction was good so far but that the cheeks needed to be more 

hollow, the chin different, and the hair longer. 

6 
No. 32633-1-III 

Pers. Restraint of Sanchez 

On the night of February 22, Officer Cortez returned to the hospital 

and showed Kublic a photomontage. Before allowing Kublic to view this 

and later photo arrays, he admonished her that she was not required or 

expected to choose anyone but just to pick the person who did the crime, 

and that the purpose of the review is not only to arrest offenders but to clear 

the innocent. The photo array presented by Cortez happened to include Jose 

Luis Sanchez Jr., but only as a filler photo because he was not yet a suspect. 

Kublic did not identify him or anyone else from the array. 

Detective Kellett returned to the hospital again late on the night of 

February 23 to present Kublic with a binder including a 20-page serial array 

of individual photographs. Among them were photographs of Junior 

Sanchez, Mario Mendez, and Manuel Sanchez. The detective did not tell 

her that Junior Sanchez had been arrested. Kublic appeared more alert. 

Detective Kellett positioned himself beside her and turned the pages, 

pausing about three seconds with each page. Upon seeing Mendez's photo, 

Kublic gasped and said, "[T]hat looks like him." She did not react in any 

way upon seeing the photographs of Junior Sanchez or Manuel Sanchez. 

After reviewing all of the photographs, Kub lie took the book from the 

detective's hands, turned back to the photo of Mendez and expressed 

assurance that he was "the one without the mask." 

On March 2, several days after Kublic was released from the 

hospital, she met with Detective.Kellett to provide a tape-recorded 

statement. By that time, Junior's booking photo had appeared in the 

newspaper and on local television news. In the course of Kublic's recorded 

statement, she stated that she now thought the suspect she had earlier 

described as having very short hair might have been the one with the 

automatic gun. She also stated that she had thought he had hair, "but after I 

saw him on the news, he's the one with the shaved head, the one that they 

have." Detective Kellett's understanding was that Kublic had been sure on 

February 23 that Mendez was the one without the mask, but on March 2 

was now sure that "the one that they have" (Junior) was the one without the 

mask. 

Sanchez, 171 Wn. App. at 528-32 ( citation omitted). 

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No. 32633-1-III 

Pers. Restraint of Sanchez 

In August 2007, Sanchez moved to suppress Kublic's eyewitness identification of 

him as induced by impermissibly suggestive police procedures likely to lead to 

misidentification. He argued that her identification was too unreliable to be submitted to 

the jury. 

At the suppression hearing, the officers testified to the above facts. Kublic 

testified that during her entire time in the hospital, she needed pain medication and 

wanted to sleep. She said her initial confusion about whether the shooter had been the 

man with or without the mask passed as she recovered from the trauma of the shooting 

and that it became clear in her own mind (without input from police or anyone else) that 

the shooter was the man with the shorter hair. She had seen him clearly just before he 

pulled the trigger and was 100 percent sure it was Sanchez. Kub lie also testified that 

sometime after her hospital release, she saw a newspaper photo clipping of Sanchez near 

the cash register in a convenience store. On April 12, 2005, she attended a court hearing 

in which she viewed Sanchez in the courtroom in jail clothes and handcuffs. When asked 

about telling Detective Kellett in the March 2 interview that she saw Sanchez on the 

news, she answered that she could not remember. She did not recall previously seeing 

him on television or in the newspaper. 

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No. 32633-1-111 

Pers. Restraint of Sanchez 

Dr. Robert Shomer, the defense eyewitness identification expert, testified at the 

hearing and opined that the combination of Kub lie viewing Sanchez in a 6-pack photo 

array on February 22, then in the 20-photo serial array, then in a newspaper clipping, and 

also in the news media, created a source confusion that led her to mistakenly believe 

someone pictured in the montages was familiar from the crime scene. He opined this 

irrevocably tainted Kublic's memory of the primary suspect and irreparably undermined 

the validity of her identification such that it lacked independent reliability and rendered 

any in-court identification unreliable. 

The trial court denied the suppression motion on the basis the police employed no 

impermissibly suggestive identification procedures. It further noted that Kublic's in-court 

identification would appropriately be tested on cross-examination and its reliability would 

be a matter for the jury to decide. The court did comment that by the time ofKublic's 

March 2 interview with Detective Kellett, she must have either seen an account of the 

Sanchez arrest on the news or been told about it by someone in her family or elsewhere. 

This court upheld the trial court's ruling on direct appeal. See Sanchez, 171 Wn. App. at 

581-83. 

At trial, Michelle Kub lie testified to the details of the shooting incident and her 

certain identification of Sanchez as the shooter. She left her apartment to run an errand 

9 
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No. 32633-1-III 

Pers. Restraint of Sanchez 

on the night of February 20, 2005. While backing her vehicle from its parking spot, she 

was confronted by a Hispanic man with a gun, who appeared in front of the vehicle, 

illuminated by her headlights. A second Hispanic man opened the driver's door, grabbed 

her by the hair, and pulled her from her vehicle. The second man held a gun to her head 

and walked her back to the apartment where she and Ricky Causor, a drug dealer, lived 

with their two daughters. Causor opened the door and the man holding Kublic hostage 

pointed his gun at Causor. Kublic noticed the gun was square-shaped with its 

ammunition clip inserted from the bottom. Causor let the gunman enter. Once inside, the 

gunman forced Kublic to kneel on the floor with her daughters. 

The man Kublic had first seen in her headlights (Mendez) soon entered the 

apartment, now wearing a mask. He carried a revolver-style handgun and guarded her in 

the living room while the unmasked intruder took Causor into the kitchen to retrieve 

marijuana and approximately $900 in currency. The unmasked intruder escorted Causor 

back to the living room. Causor then knelt down facing Kublic, with their daughters on 

the floor between them. Kublic testified that at that point, she saw that the unmasked 

intruder had a really mad look on his face. He walked directly behind Causor and fired 

five shots from his .45 caliber handgun at the heads of Causor and Kub lie. Kub lie said it 

was at that moment she saw the shooter the best. She identified him in court as the 

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No. 32633-1-III 

Pers. Restraint of Sanchez 

defendant, Jose Luis Sanchez, Jr. She testified she was 100 percent certain it was him. 

She testified she saw his face "clear as day, mad and pointing the gun." RP (Nov. 15, 

2007) at 1037. She said he never wore a mask and that he shot with the same squareshaped gun he had earlier pointed at Causor in the apartment doorway. She said she had 

not gotten any information about the suspects from other individuals or news media 

sources. 

As contemplated in the court's ruling denying suppression of Kublic's eyewitness 

identification, the defense extensively cross-examined her about the differences in her 

descriptions of the assailants at various times, including while she was in the hospital. 

She maintained that despite any variations of what she told detectives, her first good look 

at either assailant was the person in front of her vehicle who was then not wearing a mask 

but later wore one. But in the end, she got the best look at the person who never wore a 

mask, and it was that person (Sanchez) who shot her family. She further said she did not 

recall seeing Sanchez in the news. 

Sanchez presented defenses of alibi (that he was at a girlfriend's apartment at the 

time of the killings) and misidentification, including Dr. Shomer's expert testimony 

relating the same source confusion theory as he did at the suppression hearing. The jury 

accepted the State's witnesses' testimonies that Sanchez was the shooter, rejected 

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No. 32633-1-III 

Pers. Restraint of Sanchez 

Sanchez's theories of alibi and misidentification, and found him guilty as charged. 

Additional facts pertaining to the shooting incident are otherwise well known to 

the parties and will be repeated only as necessary to resolve Sanchez's claims in this PRP. 

GROUND ONE-ARRAIGNMENT WITHOUT COUNSEL PRESENT 

Generally, to obtain relief in a personal restraint petition the petitioner must show 

either a constitutional error resulted in actual and substantial prejudice, or a 

nonconstitutional error caused a fundamental defect resulting in a complete miscarriage 

of justice. In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990). The 

supporting evidence must be based on "more than speculation, conjecture, or inadmissible 

hearsay," and failure to meet this burden calls for dismissal of the petition. In re Pers. 

Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992). 

Sanchez's primary claim seeks to avoid Cook's requirement that actual and 

substantial prejudice be shown. He claims his arraignment was a critical stage in the 

proceedings such that his counsel's absence constitutes structural error requiring 

automatic reversal of his convictions without considering prejudice. Sanchez relies 

primarily on Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2d 114 (1961) 

where the United States Supreme Court held that denial of counsel at arraignment-a 

critical stage under Alabama law-was reversible error without a showing of prejudice. 

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No. 32633-1-111 

Pers. Restraint of Sanchez 

Alternatively, if there was no structural error, Sanchez claims he was nevertheless 

prejudiced under the Cook standard by his attorney's absence at his arraignment. 

A. Claimed Structural Error 

"An accused's right to be represented by counsel is a fundamental component of 

our criminal justice system." United States v. Cronic, 466 U.S. 648, 653, 104 S. Ct. 2039, 

80 L. Ed. 2d 657 (1984). Under both the United States and Washington Constitutions, a 

defendant is entitled to the assistance of counsel at all critical stages of criminal 

proceedings. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22; Missouri v. Frye,_ 

U.S. , 132 S. Ct. 1399, 1405, 182 L. Ed. 2d 379 (2012); United States v. Wade, 388 U.S. 

218, 224, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 ( 1967); State v. Reddrick, 166 Wn.2d 898, 

909-10, 215 P.3d 201 (2009); State v. Stewart, 113 Wn.2d 462,468, 780 P.2d 844 (1989). 

The United States Supreme Court long ago stated that the period from arraignment to 

trial is "perhaps the most critical period of the proceedings" during which the accused 

"requires the guiding hand of counsel." Powell v. Alabama, 287 U.S. 45, 57, 69, 53 S. Ct. 

55, 77 L. Ed. 158 (1932). 

Washington court rules confer on a defendant an early right to counsel. 

CrR 3 .1 (b )(1) (right to counsel accrues as soon as feasible after defendant is taken into 

custody, appears before committing magistrate, or is formally charged, whichever occurs 

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No. 32633-1-III 

Pers. Restraint of Sanchez 

earliest). When an accused appears without counsel at arraignment, the court is required 

to inform the defendant of the right to counsel before the defendant may be arraigned. 

CrR 4. l(c). A defendant may proceed forward with the arraignment by waiving the right 

to counsel, but the waiver must be supported by appropriate findings entered into the 

record. CrR 4.1( d). 

The Washington Supreme Court has recognized that "[a] complete denial of 

counsel at a critical stage of the proceedings is presumptively prejudicial and calls for 

automatic reversal." Reddrick, 166 Wn.2d at 910 (citing Cronic, 466 U.S. at 658-59, 659 

n.25; Bell v. Cone, 535 U.S. 685, 696 n.3, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002) 

( denial of counsel at critical stage is structural error and grounds for reversal without a 

demonstration of prejudice)). "A critical stage is one 'in which a defendant's rights may 

be lost, defenses waived, privileges claimed or waived, or in which the outcome of the 

case is otherwise substantially affected."' Id. (quoting State v. Agtuca, 12 Wn. App. 402, 

404, 529 P.2d 1159 (1974)). 

An error is considered "structural" when it "affect[s] the framework within which 

the trial proceeds, rather than simply an error in the trial process itself." Arizona v. 

Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991 ). When there is 

structural error "' a criminal trial cannot reliably serve its function as a vehicle for 

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No. 32633-1-111 

Pers. Restraint of Sanchez 

determination of guilt or innocence, and no criminal punishment may be regarded as 

fundamentally fair."' Id. (quoting Rose v. Clark, 478 U.S. 570, 577-78, 106 S. Ct. 3101, 

92 L. Ed. 2d 460 (1986)). For this reason, structural errors are not subject to harmless 

error analysis. Id. at 309-1 O; see In re Pers. Restraint of Stockwell, 179 Wn.2d 588, 608, 

316 P.3d 1007 (2014) (McCloud, J., concurring). 

But United States Supreme Court jurisprudence establishes that constitutional 

harmless error analysis applies to the denial of the Sixth Amendment right to counsel at 

all stages of criminal proceedings, except for those where "the deprivation of the right to 

counsel affected-and contaminated-the entire criminal proceeding." Satterwhite v. 

Texas, 486 U.S. 249, 257, 108 S. Ct. 1792, 100 L. Ed. 2d 284 (1988). In Satterwhite, the 

court held that conducting psychiatric examinations in violation of the Sixth Amendment 

did not "pervade the entire proceeding" and was subject to harmless error analysis. Id. at 

256. Likewise, in Fulminante, the admission of a confession obtained in violation of the 

Sixth Amendment was subject to harmless error analysis. Fulminante, 499 U.S. at 310-

11. 

The United States Supreme Court has repeatedly referenced the arraignment case, 

Hamilton, 368 U.S. 52, and the preliminary appearance case, White v. Maryland, 373 U.S. 

59, 83 S. Ct. 1050, 10 L. Ed. 2d 193 (1963) as examples of deprivation of counsel that 

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No. 32633-1-III 

Pers. Restraint of Sanchez 

"by their very nature cast so much doubt on the fairness of the trial process that, as a 

matter of law, they can never be considered harmless." Satterwhite, 486 U.S. at 256; see 

also Wade, 388 U.S. at 225 (observing Hamilton as an example of Powell's "guiding 

hand of counsel" principle because it involved the "type of arraignment" where certain 

rights might be sacrificed or irretrievably lost if not asserted); see also Bell, 535 U.S. at 

695-96 ( observing Hamilton and White as examples of a trial being presumptively unfair 

due to denial of presence of counsel at a critical stage, "such as arraignment, that held 

significant consequences for the accused"). 

In Hamilton, the United States Supreme Court determined that an arraignment in a 

capital case under Alabama law was a critical stage because it was the point in the 

proceedings at which a defendant must (by statute) assert the defense of insanity or the 

defense was deemed waived, only recoverable on discretion of a trial judge whose 

decision was not revisable on appeal. Hamilton, 368 U.S. at 53. In addition, Alabama 

law required pleas in abatement, motions to quash based on systematic exclusion of one 

race from grand juries, or claims that the grand jury was otherwise improperly drawn to 

be made at the time of arraignment. Id. at 53-54. The Court concluded that "[w]hatever 

may be the function and importance of arraignment in other jurisdictions ... in Alabama 

it is a critical stage in a criminal proceeding. What happens there may affect the whole 

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No. 32633-1-III 

Pers. Restraint of Sanchez 

trial. Available defenses may be ... irretrievably lost, if not then and there asserted." Id. 

at 54. The Court thus held that denial of counsel to Hamilton at arraignment was 

reversible error without considering prejudice. Id. at 54-55. 

Similarly, in White the defendant appeared without counsel at a preliminary 

hearing and entered a guilty plea. White, 373 U.S. at 59. Although White later withdrew 

the plea, it was used against him at trial. Id. at 60. Referencing Hamilton, the Supreme 

Court determined that the preliminary hearing was "as 'critical' a stage as arraignment 

under Alabama law" because White entered a plea that was taken by the magistrate at a 

time when he had no counsel. White, 373 U.S. at 60. In finding Hamilton controlling and 

reversing the judgment without considering prejudice, the court reasoned that "' [ o ]nly the 

presence of counsel could have enabled this accused to know all the defenses available to 

him and to plead intelligently."' White, 373 U.S. at 60 (quoting Hamilton, 368 U.S. at 

55). 1 

1 For other examples of cases of presumed prejudice when counsel was absent or 

prevented from assisting the defendant at a critical stage, see e.g., Penson v. Ohio, 488 

U.S. 75, 88-89, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988) (complete denial of counsel on 

appeal); Holloway v. Arkansas, 435 U.S. 475, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978) 

( conflict of interest in representation throughout entire proceeding); Geders v. United 

States, 425 U.S. 80, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976) (denial of access to counsel 

during overnight recess); Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. 

Ed. 2d 246 ( 1964) ( accused confronted by prosecuting authorities who obtained 

incriminating statements by ruse and in the absence of defense counsel); Gideon v. 

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No. 32633-1-III 

Pers. Restraint of Sanchez 

As illustrated by the above-cited United States Supreme Court cases, the 

characterization of Sanchez's hearing as an arraignment is not determinative of whether 

the hearing was a critical stage so that defense counsel's absence was presumptively 

prejudicial. Rather, we must examine the nature of Sanchez's arraignment before we can 

determine whether it was a critical stage. Only if the nature of his arraignment was such 

that he stood to lose important rights that might affect the outcome of his case should it be 

considered a critical stage. See Heddrick, 166 Wn.2d at 910. 

Unlike in Hamilton, Sanchez stood no risk of waiving any rights or foregoing any 

defenses at his arraignment. Nor did he make admissions of guilt like the defendant in 

White. He did not forfeit any right to plead guilty or to plead not guilty by reason of 

insanity. Had he wished to raise an insanity defense, he could have done so "at the time 

of arraignment or within ten days thereafter or at such later time as the court may for good 

cause permit." RCW 10.77.030(1). Sanchez never sought to assert an insanity defense or 

otherwise change his not guilty pleas, even though the information was twice amended 

prior to trial. Nor does Sanchez assert in his declaration filed with this petition that he 

ever desired to plead guilty. Instead, throughout the proceedings, he maintained his 

Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963) (total deprivation of 

counsel throughout entire proceeding); see also In re Pers. Restraint of Richardson, 100 

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No. 32633-1-111 

Pers. Restraint of Sanchez 

defenses of general denial, alibi, and misidentification. Pleading guilty to some charges 

at arraignment would have been antithetical to Sanchez's defenses to aggravated murder. 

The Washington Supreme Court has observed that "[t]he arraignment procedure 

essentially consists of ascertaining the defendant's name, advising the defendant of 

certain rights including the right to counsel, and informing the defendant of the charges 

that have been filed." State v. Frazier, 99 Wn.2d 180, 184,661 P.2d 126 (1983) (citing 

former CrR 4.l(b)-(e)). In substance, this is all that comprised the limited scope of 

Sanchez's arraignment proceeding. 

Thus, unlike in Hamilton, Sanchez makes no showing that any right or defense he 

possessed prearraignment was forfeited or went unpreserved by his attorney's absence at 

arraignment. We conclude that any Sixth Amendment or rule-based deprivation/absence 

of counsel at Sanchez's arraignment did not contaminate the entire trial proceeding so as 

to bring this case within the purview of Hamilton, White, or other previously noted cases 

of presumed prejudice. 

Consistent with this conclusion is State v. Jackson, 66 Wn.2d 24, 400 P.2d 774 

( 1965). The Jackson court held, the "name of the stage of the criminal proceeding is not 

controlling" and "[t]he court must look at substance and not merely at form" to ascertain 

Wn.2d 669,679,675 P.2d 209 (1983) (no independent showing of prejudice required 

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No. 32633-1-III 

Pers. Restraint of Sanchez 

the possibility of prejudice to the defendant in the defense of his case. Id. at 28; see also 

State v. Louie, 68 Wn.2d 304, 308-09, 413 P.2d 7 (1966). As discussed, Sanchez's 

arraignment proceeding lacked the type of substance so as to confer on it "critical stage" 

status. 

We conclude any infringement on Sanchez's right to counsel at arraignment does 

not give rise to presumed prejudice or structural error. We thus review his petition under 

the Cook standard requiring him to show actual and substantial prejudice. See In re Pers. 

Restraint of Brockie, 178 Wn.2d 532, 539, 309 P.3d 498 (2013) (if a constitutional error 

is subject to harmless error analysis on direct appeal, the same error alleged in a PRP 

must be shown to have caused actual and substantial prejudice in order for the petitioner 

to obtain relief) ( citing In re Pers. Restraint of Hagler, 97 Wn.2d 818, 825-26, 650 P .2d 

1103 (1982)). 

B. Claimed Prejudice 

Sanchez argues he suffered actual and substantial prejudice as a result of his 

counsel's absence at his arraignment, where counsel could have objected to media filming 

or photographing his face. We disagree. 

when error was deprivation of conflict-free counsel). 

20 
No. 32633-1-III 

Pers. Restraint of Sanchez 

Sanchez cross-examined Kublic at trial with respect to variations in her 

descriptions of the intruders and her alleged media exposure. Sanchez also presented his 

"source confusion" misidentification theory to the jury through Dr. Shomer's expert 

testimony. The jury credited Kub lie' s testimony that she was 100 percent certain Sanchez 

was the shooter because she saw his face clear as day when he fired the gunshots and 

rejected the defense alibi and misidentification arguments. We do not review the jury's 

determinations as to weight of the evidence and witness credibility. State v. Walton, 64 

Wn. App. 410, 415-16, 824 P.2d 533 (1992). Nothing about Fessler's absence at 

Sanchez's arraignment affected his ability to argue his misidentification defense at trial. 

Moreover, Sanchez has never established what media footage or photographs were 

produced from the arraignment. Sanchez identifies none in the clerk's papers from the 

appeal and produces none as additional evidence in this petition. Moreover, the question 

of whether Kub lie even saw Sanchez's face in the media is mere speculation. The jury 

has already credited Kublic's testimony that her identification of him as the shooter did 

not come from any media but from her own independent observation of his face when he 

fired the shots. 

Finally, Kublic's identification of Sanchez was not the only evidence the State 

produced linking Sanchez to the crimes. For his part in the Causor home invasion, 

21 
No. 32633-1-III 

Pers. Restraint of Sanchez 

Mendez pleaded guilty to two counts of first degree murder and other crimes in exchange 

for a 30-year sentence and truthful testimony at Sanchez's trial. The jury was told of this 

agreement. Mendez testified as to the details of his and Sanchez's planning and 

commission of the home invasion robbery. Mendez testified Sanchez shot the victims, 

and they both fled in Sanchez's truck with Causor's marijuana and money. Consistent 

with Kublic's trial testimony, Mendez said Sanchez was not wearing a mask when 

Sanchez shot the victims. Mendez also testified that Sanchez told him prior to the 

incident that he (Sanchez) would not wear a mask. In addition to Mendez's testimony, 

police executed a search warrant at Sanchez's residence and recovered a .45 handgun. 

Ballistics tests confirmed that this handgun was the murder weapon. 

Given Kublic's testimony and the strength of the State's other evidenceMendez's testimony accepted by the jury, and the presence of the murder weapon at 

Sanchez's residence-Sanchez fails to show he was actually and substantially prejudiced 

by Fessler's absence at his arraignment. Sanchez fails his burden under Cook in his 

ground one claim. 

22 
No. 32633-1-111 

Pers. Restraint of Sanchez 

GROUND TWO-INEFFECTIVE ASSISTANCE OF COUNSEL 

In the alternative, Sanchez claims he was denied effective assistance of counsel 

when Fessler failed to appear and object to his being filmed/photographed by media at his 

arraignment. 

To establish ineffective assistance of counsel, Sanchez must show that his 

attorney's performance was deficient, i.e., that the representation "fell below an objective 

standard of reasonableness" based on consideration of all the circumstances, and that he 

was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. 

Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 

1251 (1995). Prejudice occurs when but for counsel's deficient performance, it is 

reasonably likely that the trial outcome would have been different. McFarland, 127 

Wn.2d at 335. "[I]f a personal restraint petitioner makes a successful ineffective 

assistance of counsel claim, he has necessarily met his burden to show actual and 

substantial prejudice." In re Pers. Restraint of Crace, 174 Wn.2d 835, 846-47, 280 P.3d 

1102 (2012). We need not address both prongs of the ineffective assistance test if the 

defendant's showing on one prong is insufficient. Strickland, 466 U.S. at 697; State v. 

Foster, 140 Wn. App. 266, 273, 166 P.3d 726 (2007). 

23 
.. 

No. 32633-1-III 

Pers. Restraint of Sanchez 

As discussed above, Sanchez is unable to show he was actually and substantially 

prejudiced by Fessler's absence at his arraignment. He therefore fails to meet 

Strickland's prejudice prong and fails his burden in his ground two claim. 

In conclusion, Sanchez makes no claim entitling him to relief. We, therefore, deny 

and dismiss his PRP. 

Lawrence-Berrey, 

( ,.. '""c5-N,I. • 

J. 

'3 ~ ~'( ~ 

WE CONCUR: j 

3 - s. 

Fearing,~\ 

24