Argued September 12, 2013
This pagination accurately reflects the pagination of the original published document, though the page numbers of this document may appear to be out of sequence.
Oliver R. Davis (of Washington Appellate Project ), for petitioner.
Daniel S. Satterberg, Prosecuting Attorney, and Ann M. Summers and James M. Whisman, Deputies, for respondent.
AUTHOR: Justice Charles W. Johnson. WE CONCUR: Justice Mary E. Fairhurst, Justice Charles K. Wiggins, Justice Steven C. Goná lez, Justice Sheryl Gordon McCloud, James M. Johnson, Justice Pro Tem. AUTHOR: Justice Debra L. Stephens. WE CONCUR: Justice Susan Owens. AUTHOR: Chief Justice Barbara A. Madsen.
C. Johnson, J.
[181 Wn.2d 711] ¶ 1 This case concerns whether an attorney can stipulate to an element of a charged crime over his client's express objection and whether, in this case, any error was waived by the defendant. In addition, we must decide whether defense counsel's failure to request a limiting instruction constituted ineffective assistance of counsel. The Court of Appeals, in a two to one opinion, affirmed the defendant's convictions for assault in the second degree with a firearm enhancement and first degree unlawful possession of a firearm. We reverse the Court of Appeals as to the unlawful possession of a firearm conviction and affirm as to the assault conviction. 
Facts and Procedural History
¶ 2 In the early morning hours of February 7, 2010, Officer David Ellithorpe was patrolling the streets of Seattle in a marked police cruiser. At 1:00 a.m., Ellithorpe saw [181 Wn.2d 712] two men emerge from an alley. One of the men raised his hand and pointed at the officer; Ellithorpe heard a gunshot and saw a muzzle flash in the man's hand. Less than two minutes later, after Ellithorpe had radioed in the incident, another officer apprehended two men. Ellithorpe immediately recognized both men, one of whom was the petitioner, Mario Humphries. The officers arrested Humphries and searched the area but failed to recover a gun or any shell casings.
¶ 3 The State charged Humphries with second and third degree assault, as well as first degree unlawful possession of a firearm based on multiple juvenile convictions for robbery that rendered him ineligible to possess a firearm. On the first day of trial, the parties informed the court that they had agreed to stipulate that Humphries had been convicted of a " serious offense." Defense counsel indicated he did not want the jury to hear about the underlying convictions but informed the court that Humphries disagreed with the stipulation. Both the defense attorney and the trial judge discussed the matter and agreed that stipulating to an element was a tactical decision that did not require the defendant's consent.  Accordingly, just before the State rested, the stipulation was read to the jury. The stipulation conceded that Humphries " had previously been convicted of a serious offense," that he " had previously received written notice that he was ineligible to possess a firearm," and that he " knew that he could not possess a firearm." Clerk's Papers at 12. The stipulation had been [181 Wn.2d 713] signed by the defense attorney and prosecutor but not by Humphries. No limiting instruction was given or requested to accompany the stipulation. After both sides had presented their cases and before the
jury began deliberations, defense counsel indicated that Humphries would sign the stipulation, which he did. The stipulation was filed with the court but is unclear whether the stipulation was also admitted into evidence.
¶ 4 The jury found Humphries guilty of all three crimes and a firearm enhancement. At sentencing, Humphries's attorney moved for a new trial based on ineffective assistance of counsel, stating that he " should have asked the Court to enter into a limiting instruction," but the trial court denied the motion. Verbatim Report of Proceedings (Jan. 6, 2011) at 3. The court vacated the third degree assault conviction and imposed 106 months of confinement: 70 months for second degree assault with an additional 36 months for a firearm enhancement and 75 months for unlawful possession of a firearm (to run concurrently).
¶ 5 On appeal, Humphries argued that his constitutional rights were violated when the stipulation was read to the jury over his express objection and that he received ineffective assistance of counsel. The Court of Appeals issued a split decision affirming the convictions. The majority opinion did not address the validity of the stipulation but rather held that Humphries had either waived or abandoned the issue in eventually signing the stipulation. State v. Humphries, 170 Wn.App. 777, 798, 285 P.3d 917 (2012). The dissenting opinion argued that entry of the stipulation over Humphries's express objection violated the Fifth and Sixth Amendments to the United States Constitution. Humphries, 170 Wn.App. at 801-02 (Dwyer, J., dissenting). Humphries sought, and we granted, discretionary review. State v. Humphries, 177 Wn.2d 1007, 300 P.3d 416 (2013).
[181 Wn.2d 714]Analysis
a. Propriety of a Stipulation over the Defendant's Objection
¶ 6 Humphries argues that the decision to enter a stipulation at trial is exclusively within the defendant's discretion. Accordingly, Humphries argues that before a stipulation can be entered, a court must engage in a colloquy with the defendant to ensure that the defendant is entering the stipulation knowingly and voluntarily. The State argues that whether to enter a stipulation is a strategic decision to be made by counsel and that the defendant's express objection is irrelevant. This is an issue of first impression in Washington. We hold that although the decision to stipulate an element of the crime does not generally require a colloquy on the record with the defendant, such a decision may not be made over the defendant's known and express objection.
¶ 7 The decision to stipulate to an element implicates more than merely trial tactics. Under the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution, a criminal defendant has the right to require the State prove every element constituting the crime. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); see also Mathews v. United States, 485 U.S. 58, 64-65, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988). This right is anchored in principles of due process existing under the Fifth and Fourteenth Amendments.  When the parties stipulate to the facts that establish an element of the charged crime, the jury need not find the existence of [181 Wn.2d 715] that element, and the stipulation therefore constitutes a waiver of the " right to a jury trial on that element," United States v. Mason, 85 F.3d 471, 472 (10th Cir. 1996), as well as the right to require the State prove that element beyond a reasonable doubt, Sullivan v. Louisiana, 508 U.S. 275, 278, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).
¶ 8 Although stipulations implicate the defendant's constitutional rights, generally stipulations do not need to be accompanied by a colloquy on the record between the defendant
and the trial court. In United States v. Ferreboeuf, 632 F.2d 832 (9th Cir. 1980), the Ninth Circuit addressed this issue. There, the defendant's attorney signed a stipulation to two elements of a charged crime. On appeal, the defendant argued that stipulations such as this required a trial court to personally question the defendant to determine voluntariness, as is required for the entry of guilty pleas. The court rejected this rule, recognizing a difference between pleading guilty, which requires such a colloquy, and stipulating to crucial facts. As the court reasoned, requiring trial courts to question defendants personally as to the voluntariness of every stipulation would " needlessly delay and confuse the conduct of a typical trial." Ferreboeuf, 632 F.2d at 836. Instead, the court held that when a stipulation is agreed to by the defendant's attorney in the presence of the defendant, the trial court may presume that the defendant consents, unless the defendant objects at the time the stipulation is made. Ferreboeuf, 632 F.2d at 836. We agree with this analysis, and here we are dealing with a situation where Humphries did object.
¶ 9 Although courts can presume a defendant consents to a stipulation, this presumption disappears where the defendant expressly objects. In United States v. Williams, 632 F.3d 129 (4th Cir. 2011), for example, the defendant was charged with conspiracy to possess heroin with the intent to distribute for receiving a package of heroin in the mail. The prosecution sought to enter a stipulation under which the [181 Wn.2d 716] defendant admitted that the contents of the package tested positive for heroin in lieu of having the forensic chemist testify. Williams, 632 F.3d at 131. The defendant refused to sign the stipulation, but the court allowed the defense counsel to sign it over the defendant's objection, and the stipulation was read to the jury. Williams, 632 F.3d at 131. On appeal, the Fourth Circuit held that the trial court erred in admitting the stipulation over the defendant's objection because doing so violated his Sixth Amendment right to confront witnesses. Williams, 632 F.3d at 132. The court also noted that the " stipulation may ...