Appeals Court Finds Defense Lawyer in Clallam County Gun Trial "Plainly Deficient," but Upholds the Conviction

A state appeals court has found the defense attorney at a gun trial "plainly deficient" for agreeing to give jurors the name of the 1998 felony that cost his client his firearm rights, after Clallam County Superior Court Judge Brent Basden repeatedly urged him not to.

The conviction stands anyway.

In an unpublished opinion filed July 20, 2026, Division One of the Washington State Court of Appeals affirmed Daniel Olaf Bertelson's Clallam County conviction for first degree unlawful possession of a firearm. 

Chief Judge Cecily Hazelrigg wrote, joined by Judges Janet Chung and Michael Diaz.

Fireworks, a Fire, and Shell Casings

Port Angeles police and Lower Elwha Klallam tribal officers responded to a 911 report of a possible firearm violation on July 21, 2024, per the opinion. 

A neighbor reported children setting off fireworks and a fire along Highway 101. She later testified she watched Bertelson hold a gun overhead and fire four rounds from under 50 feet.

Officer Kyle Buchanan testified he found brass shell casings in the driveway and saw Bertelson put a foot over one. A records check showed a prior felony. 

Buchanan detained Bertelson, got a search warrant, and recovered a .40 caliber pistol with a loaded magazine from a trailer bench after Bertelson offered to say where it was "to make things easy."

Bertelson testified he heard only fireworks. His partner testified the pistol was hers, though she had not finished buying it. 

At the April 2025 trial, jurors acquitted him of all three witness tampering counts and convicted him on the gun charge.

The Stipulation

Under Old Chief v. United States, a 1997 U.S. Supreme Court ruling, a defendant can stipulate to a disqualifying conviction so jurors never learn the crime's name. The state had to prove only a prior "serious offense."

The stipulation, signed by Bertelson, his lawyer and the prosecutor, named it: conspiracy to deliver a controlled substance while armed with a deadly weapon. Two sentences later, it told jurors not to speculate about the nature of that conviction.

Judge Basden tried to head it off. He offered a version saying only "serious offense," warned the name could be prejudicial "far more than probative," and said he "would not allow that in front of a jury." 

He handed it back for the defense to reconsider, saying he did not want to "build an error into this thing right from the get-go."

The defense position did not change, and the prosecutor read it to the jury. A day later, defense counsel questioned whether naming the offense was necessary. 

Judge Basden kept it out of the written instruction but said he could not "unring that bell."

"No Legitimate Trial Tactic"

"On this record, there is no legitimate trial tactic to provide this prejudicial information to the jury," Hazelrigg wrote.

The state called it a conceivable strategy to prevent speculation. The panel rejected that, noting jurors are presumed to follow instructions and were told not to speculate. 

The opinion says the deputy prosecutor was as confused about Old Chief as defense counsel, and a footnote praises Judge Basden's "patient and thoughtful efforts."

Bertelson still had to show the error changed the outcome. There the appeal failed. The panel pointed to his own testimony: he knew a gun was in his home, knew he was a felon, and knew where it sat, in the spot where he kept a hat he admitted retrieving. 

That was "more than sufficient" for constructive possession, even without the neighbor's account.

What Happens Next

Judge Basden sentenced Bertelson April 22, 2025 to 26 months, the low end of his standard range. 

He denied a prison based drug offender sentencing alternative and ordered four years of felony firearm offender registration after release.

Because it is unpublished, the decision binds no court, though GR 14.1 allows citing it as nonbinding authority. Bertelson has 30 days to seek review in the state Supreme Court.