State of Washington v. Dallin David Fort

FILED
SEPTEMBER 15, 2015
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
STATE OF WASHINGTON, )
) No. 26830-6-111
Respondent, ) consolidated with 26204-9-111
)
v. )
)
DALLIN D. FORT, )
) PUBLISHED OPINION
Appellant. )
)
)
In the Matter of the Personal Restraint )
Petition of: )
)
DALLIN D. FORT, )
)
Petitioner. )
FEARING, J. - We enter a quagmire of appellate and personal restraint petition
procedural rules. We consolidated a personal restraint petition and a second direct appeal
filed by Dallin D. Fort upon his convictions for child rape. We agree that, at trial, Fort's
public trial rights were violated when counsel and the trial court questioned potential
jurors in the judge's chambers without the trial court performing a Bone-Club analysis, as
State v. Bone-Club, 128 Wash. 2d 254,906 P.2d 325 (1995) requires. Fort did not waive the
No. 26830-6-111; No. 26204-9-111
State v. Fort; consol. with In re Pers. Restraint ofFort
right, nor did he invite error. After reaching these initial holdings, we must determine
whether Fort may raise the violation of his constitutional rights in his second direct
appeal or in an amended personal restraint petition.
We refuse reversal of Dallin Fort's convictions by way of his second direct appeal.
Nevertheless, we hold he may champion his public trial rights through an ineffective
assistance of counsel claim, which Fort asserts in a supplemental brief in support of his
personal restraint petition. The supplemental brief arrived more than one year after Fort
first filed his personal restraint petition. But the one-year bar for bringing a personal
restraint petition does not hinder Fort's delayed assertion of ineffective assistance
because Fort filed the amendment during the pendency of his second appeal. Because of
the pendency of the appeal, his judgment and sentence was not final and the one-year
. period had not commenced. While recognizing the expense and trauma of another trial,
the sanctity of constitutional rights and Supreme Court precedence compel that we grant
Dallin Fort a new triaL
FACTS
In the summer of2003, Dallin Fort helped care for his nine-year-old niece, A.W.
Fort awakened A. W. almost every morning during darkness, touched her vagina and
compelled her to touch his penis. Fort sometimes put a vibrator inside A. W.'s vagina and
sometimes placed her mouth on his penis. State v. Fort, noted at 140 Wash. App. 1023,
2007 WL 2476003 at * 1.
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State v. Fort; consolo with In re Pers. Restraint ofFort
PROCEDURE
This case has a long and knotty procedural history that is complicated by appellate
decisions in parallel cases. An appendix to this opinion provides a quick chronology of
the case.
On November 10,2005, the State of Washington charged DaWn Fort with three
counts of rape of a child in the first degree and one count of child molestation in the first
degree. The case proceeded to trial with jury selection occurring on January 30, 2006.
The trial court asked potential jurors to complete a questionnaire about whether they, or
someone they knew, suffered sexual abuse or a sexual assault. The record does not
suggest that Fort requested use of the questionnaire or participated in its creation. The
trial court told the venire, "1 am sure that you can appreciate the need for discussing these
matters [sexual abuse]. But, also, we try to respect your privacy in these matters as much
as we can." Clerk's Papers (CP) at 83. The trial court, based on responses to the
, questionnaire, interviewed potential jurors in chambers. The trial court did not conduct a
Bone-Club analysis before closing voir dire.
Dallin Fort did not object to the questioning ofjurors in the court chambers. Fort
waived his right to be present for the interviews in chambers. Fort told the court then:
Well, the reason why 1 decided not to be present was because 1 felt if
the people had experiences, that if 1 was in the room with them, then they
would know what 1 have been charged with and that they would feel
uncomfortable with me in the room and wouldn't be as open to discussion
with my attorney.
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Report of Proceedings (RP) Jan. 30, 2006 at 41 (record from first appeaI25139-0-III). In
chambers, jurors 6, 7, 11, 12, and 13 disclosed incidents of sexual abuse or assault and
expressed an inability to be impartial. The trial court excused these jurors for cause.
On February 3, 2006, the jury found Dallin Fort guilty of two counts of rape of a
child in the first degree, but acquitted Fort of the two other charges. On April 3,2006,
the trial court sentenced Fort to a minimum of 132 months' confinement with a maximum
term of life.
On April 21, 2006, Dallin Fort appealed to this court. Fort's trial counsel filed the
notice of appeal and designated portions of the record for transcription. Counsel did not
designate voir dire for transcription. Fort avers that his appellate counsel noticed the
omission. Appellate counsel moved the trial court for public funds to supplement the
transcript.
On May 15,2006, the trial court set an appeal bond at $150,000. Dallin Fort's
parents encumbered their home to satisfy the bond. On November 1, 2006, the trial court
released Fort pending appeal.
On October 24,2006, appellate counsel for Dallin Fort filed the brief for Fort's
first direct appeal. In the brief, Fort argued that the prosecutor engaged in prejudicial
misconduct and the trial court erred in failing to consider his two convictions to be the
.same criminal conduct for purposes of sentencing. State V. Fort, 2007 WL 2476003 at
*1. Fort did not claim a violation of his public trial rights during this first appeal. On
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No. 26830-6-III; No. 26204-9-II1
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December 15,2006 and before this court's ruling in the first appeal, the trial court
ordered voir dire from Dallin Fort's trial to be transcribed at public expense.
On June 12,2007, Dallin Fort filed a personal restraint petition, in which he
argued that the trial court violated his and the public's right to the open administration of
justice.
On September 4,2007, in an unpublished opinion, this court affirmed Dallin
Fort's convictions, but reversed the sentence and remanded for resentencing. State v.
Fort, 2007 WL 2476003 at *4. This court held that the trial court erred in failing to count
Fort's two convictions as the same criminal conduct. State V. Fort, 2007 WL 2476003 at
*2-3.
On September 13,2007, this court published its decision in State v. Frawley, 140
Wash. App. 713,167 P.3d 593 (2007), aff'd, 181 Wn.2d 452,334 P.3d 1022 (2014), in
which we reversed and remanded a criminal prosecution for a new trial because the trial
court closed voir dire without weighing the Bone-Club factors on the record. The timing
of the Frawley decision and this court's decision in Dallin Fort's first appeal is important.
We analyze the legal impact of each decision's timing below.
On December 4,2007, this appeals court issued its mandate to the superior court.
The mandate reads, in relevant part:
This is to certify that the Opinion of the Court of Appeals of the
State of Washington, Division III, filed on September 4, 2007 became the
decision terminating review of this court in the above-entitled case on
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No. 26830-6-III; No. 26204-9-III
State v. Fort; consolo with In re Pers. Restraint ofFort
November 15,2007. The cause is mandated to the Superior Court from
which the appeal was taken for further proceedings in accordance with the
attached true copy of the Opinion.
Court Action Required: The sentencing court or criminal presiding
judge is to place this matter on the next available motion calendar for action
consistent with the Opinion.
CP at 64. Handwritten on the mandate is the phrase: "Remanded for Re-Sentencing."
CP at 64.
On January 3, 2008, Dallin Fort moved the trial court to grant him a new trial or
vacate his judgment and sentence based on this court's decisions in State v. Frawley, 140
Wn.App. 713,andStatev.Duckett, 141 Wash. App. 797, 173 P.3d948 (2007). In other
words, Fort, by his motion, assigned error to the closure of the courtroom during voir
dire. In support of Fort's motion for a new trial, his father declared:
I was present in the courtroom when the trial court advised the
prospective jurors that they would be taken into chambers to discuss the
answers to the jury questionnaire. I was not aware that I could object to the
closure of the courtroom. No one asked if I objected to the closure of the
courtroom. Had I been asked, I would have objected to the courtroom
being closed as I had a great interest in observing my son's trial.
CP at 112.
On January 14,2008, this court stayed its consideration ofDallin Fort's personal
restraint petition pending our Supreme Court's decision on whether to accept review in
Frawley.
On January 25,2008, the trial court held a hearing to resentence Dallin Fort
according to this court's September 4, 2007 decision and December 4, 2007 mandate.
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Before resentencing, the trial court heard argument on Fort's motion for a new trial
because of a violation of public trial rights. The trial court refused to apply this court's
ruling in Frawley retroactively and denied Fort's motion. The trial court commented:
And I think that kind of highlights that, you know, really, the
Frawley decision caught everybody off guard and came out of left field, so
to speak, because that was, certainly, the established practice as far back as
anybody can remember doing these kinds of cases; that-to respect the
privacy of-of the prospective jurors that we would question them about
prior sexual assaults, those kind of things, in private session.
As the motion for new trial sits before this Court, I think it raises
in my mind a question as to whether a convicted defendant whose appeal is
final and whose judgment is final can avail himself or herself of-of a
decision that, effectively, you know, changes the law. In other words, does
Mr. Fort get the benefit of the Frawley decision or would that view-be
viewed as prospective only? And this, again, gets into fairly technical
discussion about whether, you know, the Frawley decision is one which
might have been anticipated or not or whether it represented truly a new
change in law that could not have been anticipated at the time that this
Court was operating.
My view is, you know-and, certainly, I'm sure that this isn't the
last time that this fine point will be discussed-is that, you know, Frawley
did represent a change of law; that, in my view, at least in terms of a
defendant in Mr. Fort's position whose appeal has been concluded and has
that aspect of finality to it, that the change of law does not work to his-to
his benefit; that it would, in my view, only be applicable to those cases
where a finality ofjudgment had not been achieved. Obviously, the-the
final call on that is going to be up to the Court of Appeals or the Supreme
Court; but that's the way I see it; that-that Frawley would not have a
retroactive application should the Frawley decision survive before the
Supreme Court.
You know, so, therefore, it's my belief that, you know, the status
of Frawley as justification for a new trial before this Court does not satisfy
the criteria that I think should be applied in this kind of a situation; and I
would, accordingly, deny the motion for new trial. I would believe that the
appropriate thing to do is to go ahead and enter a sentence-or an amended
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No. 26830-6-III; No. 26204-9-III
State v. Fort,· consolo with In re Pers. Restraint ofFort
sentence as to Mr. Fort at this time, and that's the basis upon which I want
to proceed today.
Report of Proceedings (RP) at 6-9. After denying Dallin Fort's motion for a new trial,
the trial court resentenced Fort to a minimum of 108 months confinement with a
maximum term of life.
At the January 25 hearing, Dallin Fort urged the trial court, based on the $150,000
appeal bond previously posted, to stay his incarceration pending our Supreme Court's
review of Frawley. The trial court refused a stay. A warrant of commitment sent Fort to
jail on February 1,2008.
On February 5,2008, Dallin Fort filed his second notice of appeal. In his notice of
appeal, he sought review of the trial court's denial of his motion for a new trial. On
February 11,2008, under RAP 8.2(d), Fort petitioned this court to stay his sentence and
release him pending the Supreme Court's ruling in Frawley.
On March 19,2008, Dallin Fort filed his opening brief for his second direct
appeal. Fort assigned error to the trial court's denial, at resentencing, of his motion for a
new trial because of a violation of his public trial right. Fort argued that the trial court, in
order to grant a new trial, did not need to retroactively apply this court's ruling in
Frawley since this court's mandate for resentencing did not terminate direct review. In
other words, Fort argued he remained under his first appeal. In his opening brief for his
second direct appeal, Fort did not assert ineffective appellate counsel for failing to assert
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No. 26830-6-III; No. 26204-9-III
State v. Fort; consolo with In re Pers. Restraint ofFort
a violation of his public trial rights in the first direct appeal.
On April 24, 2008, this court's commissioner denied Dallin Fort's motion to stay
execution of his sentence pending review. This court relied on CrR 3.2(h) and RCW
9.95.062, the latter which provides in part: "[A]n appeal by a defendant convicted of one
of the following offenses shall not stay execution of the judgment of conviction: ... rape
of a child in the first, second, or third degree." RCW 9.95.062(2). Fort did not move to
modify the commissioner's ruling.
On July 3, 2008, this court stayed Dallin Fort's second direct appeal because of
pending Supreme Court decisions. On February 26, 2013, this court lifted its stay of
Fort's second direct appeal. We then directed the parties to provide supplemental
briefing on State v. Wise, 176 Wn.2d 1,288 P.3d 1113 (2012); State v. Paumier, 176
Wn.2d 29,288 P.3d 1126 (2012); and In re Personal Restraint ofMorris, 176 Wash. 2d
157,288 P.3d 1140 (2012).
On April 8,2013, our Supreme Court granted review of this court's decision in
Frawley. State v. Frawley, 176 Wn.2d 1030,299 P.3d 19 (2013). On April 26, 2013,
this court scheduled Fort's second direct appeal for consideration on June 12,2013
without oral argument. On May 3,2013, this court reinstituted its stay of Fort's second
direct appeal given our Supreme Court's granting of review of State v. Frawley, 140 Wn.
App. 713, 167 P.3d 593 (2007). In the meantime, Fort's personal restraint petition
remained stayed. On March 24,2014, this court expanded the stay ofDallin Fort's
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No. 26830-6-III; No. 26204-9-III
State v. Fort; consolo with In re Pers. Restraint 0/Fort
personal restraint petition to await, in addition to Frawley, our Supreme Court's
disposition and mandate in In re Personal Restraint o/Speight, 182 Wash. 2d 103,340 P.3d
207 (2014) and In re Personal Restraint o/Coggin, 182 Wash. 2d 115,340 P.3d 810 (2014).
The state Supreme Court published its opinion in Frawley on September 25,2014.
State v. Frawley, 181 Wn.2d 452,334 P.3d 1022 (2014). This court lifted its second stay
of Fort's second direct appeal on November 5, 2014. We also granted the parties an
opportunity to file supplemental briefing regarding the applicability of our Supreme
Court's opinion in Frawley.
On December 11,2014, our Supreme Court published its decision in both Speight
and Coggin. Speight, 182 Wash. 2d 103; Coggin, 182 Wash. 2d 115. On February 19,2015,
this court lifted its stay of Fort's personal restraint petition and consolidated the petition
with Fort's second direct appeal.
Dallin Fort and the State both accepted this court's invitation to file supplemental
briefing. In his supplement brief on April 3, 2015, Fort argues for the first time that
appellate counsel for his first direct appeal was ineffective for not asserting a public trial
violation:
The appellate counsel was aware of the public trial violation because
he had ordered the voir dire transcription for this very reason. The direct
appeal attorney was also aware of the public trial violation because he knew
of the [Personal Restraint Petition] when it was filed on June 11,2007.
Nevertheless, appellate counsel did not supplement his brief and assign
error to the violation of the state and federal constitutions public trial rule.
Had he done so, Mr. Fort would have received a new trial. There was no
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No. 26830-6-III; No. 26204-9-III
State v. Fort; consolo with In re Pers. Restraint ofFort
tactical benefit or strategy in not raising this issue. This failure was
ineffective assistance of counsel.
Supp. Br. of Petitioner at 2.
LA W AND ANALYSIS
The difficult questions for this court to resolve are: whether DaHin Fort may gain a
new trial because of the violation of his public trial rights when raising the issue for the
first time in the trial court on a remand for resentencing; whether Dallin Fort may
champion his public trial rights for the first time, in this court, during his second direct
appeal; whether he may successfully directly assert the infringement of his public trial
rights in a personal restraint petition when he cannot show actual prejudice; and whether
Fort may assert his public trial rights indirectly by claiming ineffective assistance of
counsel in his supplemental personal restraint petition brief. The first, second, and· fourth
questions concern, in part, the timeliness in assigning error to the closure of the
courtroom during voir dire. These three of the four questions assume that the closure
infringed on Dallin Fort's right to a public trial. Thus, before resolving these complicated
and arduous enquiries, we must first uncover if Dallin Fort's constitutional rights were
breached when the trial court conducted a portion ofjury selection in its chambers. Ifwe
hold that the closed voir dire contravened Fort's rights, we must also resolve whether
Fort waived his rights or invited the error.
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State v. Fort; consolo with In re Pers. Restraint ofFort
Public Trial Rights Violation
Dallin Fort contends the trial court violated his and the public's right to the open
administration ofjustice without first weighing the Bone-Club factors on the record when
the trial court questioned jurors in chambers. We readily agree.
Washington's Constitution guarantees both the public and the accused a right to
the open administration ofjustice. Article I, section 10 ofthe Washington Constitution
reads, "Justice in all cases shall be administered openly, and without unnecessary delay."
This provision entitles the public and the press, as representatives of the public, to openly
administered justice. Allied Daily Newspapers of Wash. V. Eikenberry, 121 Wash. 2d 205,
209,848 P.2d 1258 (1993); Cohen V. Everett City Council, 85 Wn.2d 385,388,535 P.2d
801 (1975). Article I, section 22 of the Washington Constitution provides, in pertinent
part, "In criminal prosecutions the accused shall have the right ... to have a speedy
public trial." The state constitution's provisions echo the United States Constitution's
Sixth Amendment, applicable to the states through the Fourteenth Amendment due
process clause. The Sixth Amendment directs, in relevant part, that "[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial." In Re Oliver,
333 U.S. 257, 267, 68 S. Ct. 499,92 L. Ed. 682 (1948).
Our nation's highest court has issued two seminal opinions regarding an accused's
right to an open trial, each involving proceedings from Georgia: Waller V. Georgia, 467
U.S. 39,104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984) and Presley v. Georgia, 558 U.S. 209,
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State v. Fort; consolo with In re Pers. Restraint 01Fort
130 S. Ct. 721, 175 L. Ed. 2d 675 (2010). In Presley V. Georgia, the state trial court
excluded, over the accused's objection, the accused's uncle and other members of the
public from the courtroom during voir dire. The Presley Court summarily reversed Eric
Presley's conviction. The public trial right extended to voir dire. The trial court should
have explored other alternatives to closing the courtroom before excluding the public.
From Waller, Presley, and other federal court precedence come the following
principles of law. An accused holds the right under the federal constitution's Sixth
Amendment to insist on a public trial. Waller, 467 U.S. at 44. Nevertheless, the right to
an open trial may give way in certain cases to other rights or interests, such as the
defendant's right to a fair trial or the government's interest in inhibiting disclosure of
sensitive information. Waller, 467 U.S. at 45. Such circumstances will be rare, however,
and the balance of interests must be struck with special care. Waller, 467 U.S. at 45. The
presumption of openness may be overcome only by an overriding interest based on
findings that closure is essential to preserve higher values and is narrowly tailored to
serve that interest. Waller, 467 U.S. at 45; Press-Enter. Co. v. Superior Court oICA, 464
U.S. 501, 510,104 S. Ct. 819, 78 L. Ed. 2d 629 (1984). The interest is to be articulated
along with findings specific enough that a reviewing court can determine whether the
closure order was properly entered. Waller, 467 U.S. at 45; Press-Enter. Co., 464 U.S. at
510. The Washington Constitution provides at a minimum the same protection ofa
defendant's public trial rights as the United States Constitution's Sixth Amendment.
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State v. Bone-Club, 128 Wash. 2d at 260 (1995); Federated Publ'ns, Inc. v. Kurtz, 94 Wn.2d
51,60,615 P.2d 440 (1980).
The federal and state constitutional right to a public trial embodies various values
and advances many goals. The central aim of a criminal proceeding must be to try the
accused fairly, and cases uniformly recognize the public trial guarantee as one created for
the benefit of the defendant. Waller, 467 U.S. at 46; Gannett Co. v. DePasquale, 443
U.S. 368, 380,99 S. Ct. 2898, 61 L. Ed. 2d 608 (1979). The requirement ofa public trial
benefits the accused because of the presence of the public to see he is fairly dealt with
and not unjustly condemned. Waller, 467 U.S. at 46. In DaHin Fort's prosecution, his
father, a member of the public, wished to view the trial, including questioning of the
venire. The presence of interested spectators may keep the accused's triers keenly alive
to a sense of their responsibility and to the importance of their functions. Waller, 467
U.S. at 46. Essentially, the public trial guarantee embodies a view of human nature, true
as a general rule, that judges, lawyers, witnesses, and jurors will perform their respective
functions more responsibly in an open court than in secret proceedings. Estes v. Texas,
381 U.S. 532, 588,85 S. Ct. 1628, 14 L. Ed. 2d 543 (1965) (Harlan, J., concurring).
The knowledge that every criminal trial is subject to contemporaneous review in
the forum of public opinion is an effective restraint on possible abuse ofjudicial power.
In re Oliver, 333 U.S. at 270 (1948). In addition to ensuring that judge and prosecutor
carry out their duties responsibly, a public trial encourages witnesses to come forward
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State v. Fort; consolo with In re Pers. Restraint ofFort
and discourages perjury. Oliver, 333 U.S. at 270 n.24; Waller, 467 U.S. at 46. Finally,
open courts are essential to the courts' ability to maintain public confidence in the
fairness and honesty of the judicial branch of government as being the ultimate protector
of liberty, property, and constitutional integrity. Allied Daily Newspapers of Wash. V.
Eikenberry, 121 Wash. 2d at 211 (1993). The public nature of trials provides for
accountability and transparency, assuring that whatever transpires in court will not be
secret or un scrutinized. State v. Wise, 176 Wash. 2d at 6 (2012). Openness allows the
public to see, firsthand, justice done in its communities. Wise, 176 Wash. 2d at 6.
Based on the teachings of the United States Supreme Court's decision in Waller V.
Georgia, the Washington Supreme Court adopted an analysis to follow before a trial
court closes the courtroom to public viewing. The state high court fabricated the analysis
in the First Amendment, not the Sixth Amendment, case involving a press challenge to
the trial court's closure of the courtroom during a murder defendant's motion to dismiss
and the sealing of court records from the hearing. Seattle Times Co. v. Ishikawa, 97
Wash. 2d 30, 640 P .2d 716 (1982). The Ishikawa court issued the following assessment for
closure:
1. The proponent of closure or sealing must make some showing of the need for
doing so, and where that need is based on a right other than an accused's right to a fair
trial, the proponent must show a "serious and imminent threat" to that right.
2. Anyone present when the closure motion is made must be given an opportunity
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to object to the closure.
3. The proposed method for curtailing open access must be the least restrictive
means available for protecting the threatened interests.
4. The court must weigh the competing interests of the proponent of closure and
the public.
5. The order must be no broader in its application or duration than necessary to
serve its purpose. Ishikawa, 97 Wash. 2d at 37-39.
The Washington Supreme Court, in State v. Bone-Club, 128 Wash. 2d at 258-59
(1995), adopted the Ishikawa guidelines in a criminal case, when the defendant claimed
his public trial right was violated. Since then, courts, in criminal appeals, have referred
to the five step analysis as the Bone-Club criteria, factors, or analysis. The Bone-Club
court actually created a sixth requirement: the trial court should enter specific findings
showing the weighing of the competing interests before closing the courtroom. 128
Wash. 2d at 260.
Since every trial is unique, the trial court must, on a case by case basis, weigh the
competing interests before ordering a temporary or full closure of the courtroom. Bone-
Club, 128 Wash. 2d at 256. Although the public trial right may not be absolute, protection
of this basic constitutional right demands that a trial court resist a closure motion except
under the most unusual circumstances. Bone-Club, 128 Wash. 2d at 259; State V.
Easterling, 157 Wash. 2d 167, 174-75, 137 P.3d 825 (2006). Trial courts are obligated to
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State v. Fort; consolo with In re Pers. Restraint ofFort
take every reasonable measure to accommodate public attendance at criminal trials.
Presley, 558 U.S. at 215; State v. Leyerle, 158 Wn. App. 474,481,242 P.3d 921 (2010).
The obligation to identify a compelling interest, weigh the competing interests,
and analyze less restrictive alternatives is on the trial court. Bone-Club, 128 Wash. 2d at
261. Trial courts must consider alternatives to closure even when they are not offered by
the parties. Leyerle, 158 Wash. App. at 481. Reviewing courts may not engage in the
Bone-Club analysis if the trial court fails to do so, such that a trial court's failure to enter
findings is nearly an automatic remand for a new trial. State v. Strode, 167 Wash. 2d 222,
228, 217 P.3d 310 (2009); Bone-Club, 128 Wash. 2d at 261. Regardless of an overriding
interest in closing the courtroom, the reviewing court will reverse if the trial court did not
make appropriate findings. Leyerle, 158 Wash. App. at 481.
Dallin Fort's trial court conducted closed proceedings only during a portion ofjury
selection. The guaranty of open criminal proceedings extends to the process of voir dire,
which is itself a matter of importance not simply to the adversaries but to the criminal
justice system. Press-Enter. Co. v. Superior Court ofCA, 464 U.S. at 505 (1984); In re
Pers. Restraint ofOrange, 152 Wash. 2d 795,804, 100 P.3d 291 (2004).
In 2004, one year before Dallin Fort's trial and three years before this court's
Frawley decision, our state high court addressed the application of the Bone-Club factors
to the closure of the courtroom during voir dire. In re Pers. Restraint ofOrange, 152
Wash. 2d 795, 100 P.3d 291 (2004). In Orange, because of space limitations in the
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courtroom, the trial court excluded the public, including the accused's family members,
from the room during jury selection. The Supreme Court granted Christopher Orange's
personal restraint petition and remanded the case for a new trial. The court noted that
approving the trial court's closure of voir dire would undermine twenty years of legal
precedence.
Also before Dallin Fort's trial, the Evergreen State high court, in State V.
Brightman, 155 Wash. 2d 506, 122 P.3d 150 (2005), reversed another criminal conviction
because of closure ofjury selection to the public without consideration of the Bone-Club
factors. In State V. Wise, 176 Wn.2d 1,288 P.3d 1113 (2012) and State V. Paumier, 176
Wn.2d 29,288 P.3d 1126 (2012), the Supreme Court solidified the role of the public trial
right in the context of voir dire. In Wise and Paumier, the respective trial courts, without
performing a Bone-Club analysis, conducted questioning of individual jurors in private in
order to respect the privacy ofjurors. The court overturned convictions in each case.
The Supreme Court also ruled in In re Personal Restraint ofCoggin, 182 Wash. 2d 115,340
P.3d 810 (2014) and In re Personal Restraint ofSpeight, 182 Wash. 2d 103,340 P.3d 207
(2014), that the respective trial courts violated the accused's public trial right when
questioning jurors in chambers.
Most recently, in State v. Russell, No. 85996-5, slip op. 12 (Aug. 20, 2015), our
Supreme Court reaffirmed that peremptory and for-cause challenges are qualitatively
different from hardship and administrative excusals ofjurors, as the former likely
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State v. Fort; consolo with In re Pers. Restraint ofFort
implicate the public trial right, while the latter do not. As such, the high court held that
David Russell was not denied his right to a public trial after the trial court conducted an
in-chambers work session at which Russell, his attorney, and the prosecutor reviewed
hardship questionnaires that had been completed by jurors. No jurors were questioned in
chambers.
Dallin Fort's trial court closed voir dire without considering the five Bone-Club
factors on the record. Thus we hold that the trial court violated Fort's and the public's
right to the open administration ofjustice.
Waiver
The State of Washington argues that Dallin Fort, during trial, waived his public
trial rights such that he cannot assert them on appeal. According to the State, Fort waived
the rights by not asserting them at the time of private questioning in chambers. We
disagree.
Waiver requires the intentional relinquishment or abandonment of a known right
or privilege. State v. Frawley, 181 Wash. 2d at 461 (2014). Courts indulge every
reasonable presumption against waiver of fundamental rights. Glasser v. United States,
315 U.S. 60, 70, 62 S. Ct. 457,86 L. Ed. 680 (1942); City ofBellevue v. Acrey, 103
Wn.2d 203,207,691 P.2d 957 (1984). The prosecution bears the burden of establishing
a valid waiver. State v. Frawley, 181 Wash. 2d at 461; State v. Wicke, 91 Wn.2d 638,645,
591 P.2d 452 (1979).
19
No. 26830-6-III; No. 26204-9-III
State v. Fort; consolo with In re Pers. Restraint ofFort
In a fractured opinion, our Supreme Court addressed the waivability of public trial
rights in its Frawley ruling. Justice Charles Johnson, joined by Justice Owens, wrote the
lead opinion, which demands a written waiver of a defendant's public trial rights.
Frawley, 181 Wash. 2d at 462. Justices Stephens and Fairhurst did not consider a lack of
objection alone grounds for waiver. Frawley, 181 Wash. 2d at 469 (Stephens, J.,
concurring). Justices McCloud, James Johnson, and Gonzalez likely would require
acknowledgement on the record that a defendant discussed his public trial rights with
defense counselor the judge in order for the waiver to be knowing and enforceable.
Frawley, 181 Wash. 2d at 475-76 (Gordon McCloud, 1., dissenting in part).
Dallin Fort did not waive his public trial rights in writing. The record shows no
discussion between Fort, on the one hand, and his counselor the trial court, on the other
hand, about public trial rights. Fort expressly waived his right to be present for the
chambers interviews. But Fort did not waive his public trial rights. In State V. Frawley
and In re Personal Restraint ofMorris, 176 Wash. 2d 157 (2012), the state Supreme Court
rejected the State's arguments that an accused's waiver of the right to be present during
private questioning of potential jurors constituted a waiver of the right to questioning of
jurors in open court.
Invited Error
The State of Washington also contends that Dallin Fort invited the error inherent
in the violation of his public trial right. We again disagree.
20
No. 26830-6-III; No. 26204-9-III
State v. Fort; consolo with In re Pers. Restraint 0/ Fort
The basic premise of the invited error doctrine is that a party who sets up an error
at trial cannot claim that very action as error on appeal and receive a new trial. State v.
Momah, 167 Wash. 2d 140, 153,217 P.3d 321 (2009). The doctrine prevents parties from
receiving a windfall by misleading trial courts. Momah, 167 Wash. 2d at 153. In deciding
whether a party invites a court closure, a court considers whether the defendant or
defense counsel affirmatively advocated for closure, or for the expansion of the closure,
and benefited from the closure. Momah, 167 Wash. 2d at 155.
In In re Personal Restraint o/Coggin, 182 Wash. 2d 115 (2014), defense counsel
expressed a desire for individual juror questioning due to the publicity and sensitive
nature of the case. Nevertheless, the Coggin court concluded that Coggin's actions did
not rise to the level of invited error when he assented to the State's juror questionnaire
and the trial judge decided to question jurors in chambers.
Dallin Fort benefited from the closure because private questioning resulted in the
exclusion ofjurors with potential bias. Nevertheless, the record shows no advocacy by
Fort for the closure or its expansion. Dallin Fort recognized that his absence from juror
questioning could encourage forthright answers from potential jurors. But Fort could
have absented himself from voir dire held in open court. The record does not show that
Fort designed or authored the jury questionnaire, but the record establishes that the trial
court organized and executed the closure. Fort participated in the error, but he did not
invite it.
21
J
I, No. 26830-6-III; No. 26204-9-III
State v. Fort; consolo with In re Pers. Restraint ofFort
Direct Review
Ij We have established that the questioning ofjurors in private breached Dallin
Fort's public trial rights. We must now determine whether Fort may assert these rights in
Ij this late stage of his litigation.
Dallin Fort seeks a new trial, because of infringement of his constitutional right to
an open trial, through two avenues: (1) his second appeal, and (2) a personal restraint
petition. An appeal is also called direct review, and a personal restraint petition is known
as a collateral attack or a collateral review.
Dallin Fort first asserted his public trial rights after one appeal and during a
remand to the trial court for resentencing. He did not assert violation of his open
courtroom rights only after filing this second appeal. Instead, he earlier raised this
contention before the trial court. The trial court refused to consider the issue on remand.
We ask whether an accused may assert the violation of his constitutional rights as
grounds for a new trial on a remand from the Court of Appeals for resentencing, when the
accused failed to assign error to the violation of his rights during his first appeal or to
challenge the breach of his rights during the first trial.
We gather from a Washington decision and foreign decisions the principle that one
cannot raise an issue for the first time on a remand from a reviewing court. Washington
courts do not permit a party to ignore an issue on the first appeal only to raise the issue on
remand when it becomes apparent the initially ignored issue is critical to the party's case.
22
No. 26830-6-111; No. 26204-9-111
State v. Fort; consolo with In re Pers. Restraint ofFort
State V. Ramos, 163 Wash. 2d 654, 663, 184 P.3d 1256 (2008). An issue argued for the first
time only after remand is too late. Mirfasihi V. Fleet Mortg. Corp., 551 F.3d 682,685
(7th Cir. 2008). Any issue that could have been but was not raised on appeal is waived
on a remand. United States v. Schroeder, 536 F.3d 746, 751 (7th Cir. 2008); United
States v. Husband, 312 F.3d 247,250-51 (7th Cir. 2002). Parties cannot use the accident
of remand as an opportunity to reopen waived issues. Kenseth V. Dean Health Plan, Inc.,
t
722 F.3d 869,891 (7th Cir. 2013); United States v. Morris, 259 F.3d 894, 898 (7th Cir.
2001). Under Michigan law, the doctrine of res judicata bars a party from raising an
issue for the first time on remand that it could have raised before. South Macomb
Disposal Auth. v. American Ins. Co., 243 Mich. App. 647, 653, 625 N.W.2d 40 (2000).
The rule prohibiting raising an issue for the first time on remand should apply with added
vigor when the appeals court remanded for resentencing only and the new issue does not
impact sentencing.
Dallin Fort skirts the rule that he cannot assert a legal contention for the first time
on remand by arguing this court's decision in State V. Frawley, 140 Wash. App. 173, 167
P.3d 593 (2007), aff'd, 181 Wn.2d 452,334 P.3d 1022 (2014), should be applied
retroactively to his prosecution. This division affirmed Dallin Fort's convictions, during
his first appeal, on September 4,2007. Nine days later, this division issued its decision in
State v. Frawley, in which we reversed and remanded a criminal prosecution for a new
trial because the trial court closed voir dire without weighing the Bone-Club factors on
23
No. 26830-6-III; No. 26204-9-III
State v. Fort; conso!. with In re Pers. Restraint ofFort
the record. The Frawley facts are parallel. On December 4, 2007, this court mandated
Fort's case to the trial court for resentencing, because of error in the trial court's original
sentencing.
Dallin Fort argues that the Frawley decision created a new rule of law. He then
contends that the new rule applies retroactively to cases pending on direct review or not
yet final. Finally, Fort argues that, since this court issued its mandate to the superior
court after issuance of the Frawley ruling, the trial court should have applied the Frawley
rule and granted a new trial. The trial court found the Frawley decision to create new law
but then, contrary to precedence, refused to apply the new rule in favor of Fort. We agree
with Fort that his first appeal was not final when we issued Frawley, but we disagree with
Fort and the trial court that Frawley created a new rule oflaw.
A new rule of criminal procedure applies retroactively to all cases pending on
direct review or not yet final. In re Pers. Restraint ofHaghighi, 178 Wash. 2d 435,443,
309 P.3d 459 (2013); State v. Kilgore, 167 Wash. 2d 28,35,216 P.3d 393 (2009). Retro
application of a decision involves at least two elements. First, the case, to which the
fresh ruling is sought to be applied, must not be "final." Teague v. Lane, 489 U.S. 288,
310,109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989); State v. Kilgore, 167 Wash. 2d at 35.
Second, the ruling must compose a new decisional rule. Haghighi, 178 Wash. 2d at 443.
Concerning the first element, we define finality as the point at which a judgment
of conviction has been rendered, the availability of appeal exhausted, and the time for a
24
No. 26830-6-III; No. 26204-9-III
State v. Fort; consolo with In re Pers. Restraint ofFort
I petition for certiorari elapsed or a petition for certiorari finally denied. Kilgore, 167
Wash. 2d at 35-36. RAP 12.7 defines the finality of a decision by an appellate court.
Finality is the point at which the appellate court loses the power to change its decision.
RAP 12.7(a), (b). This occurs when the appellate court issues its mandate or when the
Court of Appeals issues a certificate of finality. State V. Kilgore, 167 Wash. 2d at 38. We
need not decide if the resentencing precluded finality, since this court issued Dallin Fort's
mandate after issuance of Frawley. The mandate alone precludes earlier finality. In re
Pers. Restraint ofEastmond, 173 Wash. 2d 632, 639, 272 P.3d 188 (2012). Thus, if
Frawley created a new rule, Dallin Fort was entitled to retrospective application of
Frawley.
The question of whether an appeals court decision constructs a new rule of law is
an esoteric inquiry compelling an implicit and theoretical measurement of the distance
between, on the one hand, a court's recent decision and, on the other hand, precedence, if
any, leading to the recent court decision. In this appeal, we must address whether
Frawley's rule, that the trial court may not, without a Bone-Club analysis, conduct a
portion of voir dire in chambers to protect juror privacy, is, on the one hand, inches or
feet, or on the other hand, miles from prior decisional law establishing public trial rights.
We conclude that Frawley is a natural, logical, tight, and diminutive extension of
precedence such that it did not create new law in the sense needed for retroactive
application of a decision.
25
No. 26830-6-III; No. 26204-9-II1
State v. Fort; conso!. with In re Pers. Restraint ofFort
A rule is "new" if it breaks new ground or if the result was not dictated by
precedent existing at the time the defendant's conviction became final. Teague v. Lane,
489 U.S. at 301 (1989); In re Pers. Restraint ofEastmond, 173 Wash. 2d at 639 (2012). If
before the opinion is announced, reasonable jurists could disagree on the rule of law, the
rule is new. Eastmond, 173 Wash. 2d at 639-40; State v. Evans, 154 Wn.2d 438,444, 114
P.3d 627 (2005). For purposes of a personal restraint petition, the test of whether a
decision constitutes a significant, material change in the law under RCW 10.73.1 00(6) is
to determine whether the defendant could have argued the issue before publication of the
new decision. State v. Gomez Cervantes, 169 Wash. App. 428, 433, 282 P.3d 98 (2012).
The Washington Supreme Court decided Seattle Times Co. v. Ishikawa, 97 Wash. 2d
30 in 1982. Ishikawa directed trial courts not to close court proceedings without first
weighing five factors that later became the Bone-Club factors. Ishikawa involved a
closure in a criminal case. Ishikawa entailed shutting of the courtroom during the
accused's motion to dismiss, but the opinion did not limit its application to any particular
portion ofa trial or hearing. Thirteen years later, in State v. Bone-Club, 128 Wash. 2d 254,
906 P.2d 325 (1995), our state high court formally adopted the five step review
demanded before closure of the courtroom.
I
State v. Bone-Club may be the least read or most ignored Supreme Court decision
I
in Washington State history. Or the decision may be both the least studied and most
i
discounted opinion in state chronicles.
I
I
i
26
t
.~
No. 26830-6-III; No. 26204-9-III
State v. Fort; consolo with In re Pers. Restraint ofFort
The teaching of Bone-Club is straightforward. If the trial court chooses to close
the courtroom during the trial or exclude the public from a proceeding, the court must
first weigh on the record the five Bone-Club criteria. Contrary to popular belief, Bone-
Club does not prevent closures. Closing the courtroom is lawful and constitutionally
permissible as long as the trial court considers and evaluates the quintuplet factors.
Weighing the factors on the record should consume little time. Trial courts otherwise
weigh competing factors, during the course of a trial, such as with an ER 404(b) analysis
and with decisions permitting child testimony. Trial courts and trial attorneys should
have known by the mid-1990s of the need to apply the Bone-Club factors before closing
the court to the public.
In 2004, the Supreme Court explicitly applied Bone-Club to jury selection in In re
Personal Restraint ofOrange, 152 Wash. 2d 795 (2004). Although Orange involved the
complete closing of the courtroom to the public during the entire voir dire, nothing in
Orange, or earlier in Bone-Club, suggested the court need not weigh the five factors
before partial closing of voir dire.
The trial court below emphasized chambers questioning ofjurors to protect a few
juror's privacy. The trial court expressed surprise that Bone-Club would not permit a
closure for this purpose. Nevertheless, factors listed in the Bone-Club analysis would
warn a trial court that the analysis must be applied when seeking to protect a juror's
privacy. One element of the analysis demands that the proponent of closure make some
27
No. 26830-6-III; No. 26204-9-III
State v. Fort; consolo with In re Pers. Restraint ofFort
showing of a need. Juror privacy could be this need. Thus, the trial court should weigh
privacy rights with the need for open hearings.
By January 2006, the law was sufficiently certain for the trial court to know to
either question jurors in the open or weigh the Bone-Club elements before closing the
court. The law was sufficiently clear for Dallin Fort's appellate counsel to raise the issue
during the first appeal. Our 2007 ruling in Frawley announced no startling rule. The
ruling was consistent with twenty years of Washington precedence.
Our conclusion is bolstered by the state Supreme Court's recent decision in In the
Matter ofPersonal Restraint ofErhart, 183 Wash. 2d 144, 351 P.3d 137 (2015). During
Toby Erhart's trial, the trial court interviewed several prospective jurors privately in
chambers without conducting the Bone-Club analysis. Erhart did not raise a public trial
issue during his 2008 appeal. He filed a personal restraint petition two years after his
criminal conviction became final. He argued that his collateral attack avoided the one-
year collateral attack time bar because either the Court of Appeals' or the Supreme
Court's decision in State V. Wise, 148 Wash. App. 425, 200 P.3d 266 (2009), rev'd, 176
Wn.2d 1,288 P.3d 1113 (2012) significantly changed the law and was thus retroactive to
his case. The Supreme Court disagreed. The Supreme Court stated that its Wise decision
was firmly grounded in its prior precedent concerning the public trial right with regard to
jury selection. Erhart could have relied on both In re Personal Restraint ofOrange
(2004) or State V. Bone-Club (1995) to have asserted, during his trial or 2008 direct
28
No. 26830-6-111; No. 26204-9-111
State v. Fort; consolo with In re Pers. Restraint ofFort
appeal, an error in jury selection closure.
Our conclusion is also bolstered by In re Personal Restraint ofMorris, 176 Wash. 2d
157 (2012). The Supreme Court observed that Patrick Morris' counsel should have
known, during Morris' direct appeal in 2005, to challenge the trial court's closure of voir
dire. Both Bone-Club and Orange had been decided by 2005.
Dallin Fort may argue that this court's mandate to the superior court for
resentencing did not terminate direct review and thus he may now assert his public trial
rights as an issue of constitutional magnitude in this second appeal regardless of his
forwarding the argument before the trial court during the sentencing remand. The general
rule is that a defendant is prohibited from raising issues on a second appeal that were or
could have been raised on the first appeal. RAP 2.5(c); State V. Sauve, 100 Wash. 2d 84, 87,
666 P.2d 894 (1983); State v. Mandanas, 163 Wash. App. 712, 716, 262 P.3d 522 (2011).
This rule applies even when the issue is one of constitutional magnitude. State v. Sauve,
100 Wash. 2d at 87. The proper vehicle for new issues is a personal restraint petition.
Sauve, 100 Wash. 2d at 87.
Mature rules apply to cases on direct review. Whorton V. Bockting, 549 U.S. 406,
416, 127 S. Ct. 1173, 167 L. Ed. 2d 1 (2007); In re Personal Restraint ofYung-Cheng
Tsai, 183 Wn.2d 91,100,351 P.3d 138 (2015). Since the Frawley decision constitutes an
old rule, the rule should have been asserted during the first, not second, appeal by Dallin
Fort. The law encourages resolution of appealable issues during the first appeal. State v.
29
No. 26830-6-111; No. 26204-9-111
State v. Fort; consolo with In re Pers. Restraint 0/ Fort
Barberio, 121 Wn.2d 48,52,846 P.2d 519 (1993).
RAP 2.5( c)(1) addresses review of trial court decisions for the first time during a
second appeal. The rule reads:
(1) Prior Trial Court Action. If a trial court decision is otherwise
properly before the appellate court, the appellate court may at the instance
of a party review and determine the propriety of a decision of the trial court
even though a similar decision was not disputed in an earlier review of the
same case.
The rule has no application here since Dallin Fort did not assign error to trial court
closure during the first proceeding before the trial court.
Ineffective Assistance o/Counsel
Dallin Fort seeks redress, in his personal restraint petition, of two constitutional
rights: his public trial right and his right to effective assistance of counsel. We already
held that the court closure violated Fort's public trial right. Before addressing whether
we should grant Fort a new trial in his personal restraint petition, we ask whether Fort's
appellate counsel's failure to assert the violation of his constitutional public trial right
during the first appeal constituted ineffective assistance of counsel. We conclude Fort
was subjected to ineffective assistance of counsel.
In re Personal Restraint o/Orange, 152 Wash. 2d 795 (2004) controls this question.
Christopher Orange sought relief in a personal restraint petition. Orange argued that his
earlier appeals counsel's failure to allege error relating to the exclusion of the public from
jury selection signified ineffective assistance of counsel. To establish ineffective
30
No. 26830-6-III; No. 26204-9-III
State v. Fort; consol. with In re Pers. Restraint ofFort
assistance of counsel, the criminal defendant must show his attorney performed
deficiently and the deficient performance caused prejudice. State v. McFarland, 127
Wn.2d 322,334-35,899 P.2d 1251 (1995). The Orange court held that a public trial
error is presumptively prejudicial, so that appellant's counsel's failure to raise the issue
on appeal was both deficient and prejudicial. The failure was not the product of strategic
or tactical thinking and it deprived Orange of the opportunity to have the constitutional
error deemed per se prejudicial on his direct appeal. The remedy for the failure was a
remand for a new trial.
The Supreme Court affirmed the Orange holding in In re Personal Restraint of
Morris, 176 Wash. 2d at 166 (2012). Morris' counsel should have known in 2005 to raise
the public trial right based solely on Bone-Club and Orange. Orange had been decided
before Morris' appeal and Orange declared, without qualification, that Bone-Club applied
to jury selection. The Supreme Court granted Morris a new trial as a result of
questioning ofjurors in private without the Bone-Club analysis.
Personal Restraint Petition
We declined Dallin Fort relief through his second appeal. Therefore, we now
address whether he may receive a new trial by advancing his public trial rights or his
effective assistance of counsel privileges by his personal restraint petition. We hold that,
in the context of this petition, Fort is entitled to a new trial. He does not succeed by
asserting his public trial rights in his initial personal restraint petition filing. He succeeds
31
No. 26830-6-111; No. 26204-9-111
State v. Fort; consolo with In re Pers. Restraint ofFort
by contending in his supplemental brief that his counsel in his first appeal was
ineffective. The latter contention is timely since Fort filed the supplemental brief before
his conviction became final.
Washington's personal restraint petition procedure supersedes the former appellate
procedure of habeas corpus. RAP 16.3(b). An incarcerated person typically files a
personal restraint petition after exhausting appeal rights. The rules, however, do not
preclude the defendant from filing a personal restraint petition during the pendency of an
appeal. RAP 16.3 to RAP 16.15 govern personal restraint petitions in noncapital cases.
This court will grant relief to a petitioner ifhe or she is under a "restraint" and the
petitioner's restraint is unlawful for one or more'ofthe reasons defined in RAP 16.4(c).
RAP 16.4(a). Those reasons include:
(2) The conviction was obtained ... in violation of the Constitution
of the United States or the Constitution or laws of the State of Washington;
or
(4) There has been a significant change in the law, whether
substantive or procedural, which is material to the conviction, sentence, or
other order entered in a criminal proceeding or civil proceeding instituted
by the state or local government, and sufficient reasons exist to require
retroactive application of the changed legal standard; or
(5) Other grounds exist for a collateral attack upon a judgment in a
criminal proceeding or civil proceeding instituted by the state or local
government; or
(7) Other grounds exist to challenge the legality of the restraint of
petitioner.
RAP 16.4(c). We previously concluded that the State obtained convictions of Dallin Fort
32
No. 26830-6-III; No. 26204-9-III
State v. Fort; conso!. with In re Pers. Restraint ofFort
while violating both the federal and the state constitutional provisions ensuring an open
courtroom and entitling a criminal defendant to effective assistance of counsel.
Failure to conduct a Bone-Club analysis before closing voir dire is error generally
requiring a new trial because questioning of the venire is an inseparable part of trial.
Coggin, 182 Wash. 2d at 118. This general rule does not always apply in a personal
restraint petition. Instead, whether the petitioner prevails can depend on whether he
alleges a violation of his open courtroom rights or his right to effective assistance of
counsel. Dallin Fort raises both contentions.
A personal restraint petition does not substitute for a direct appeal, and different
procedural rules implement the two procedures' divergence. Coggin, 182 Wash. 2d at 120.
Washington courts limit the availability of collateral relief because it undermines the
principles of finality of litigation, degrades the prominence of trial, and sometimes
deprives society of the right to punish admitted offenders. In re Pers. Restraint ofSt.
Pierre, 118 Wash. 2d 321, 329, 823 P.2d 492 (1992). Primarily, the appellate process exists
to remedy trial errors even when constitutionally based. Coggin, 182 Wash. 2d at 122. The
appellate process exists to develop the body of law governing all cases. Coggin, 182
Wash. 2d at 122. Collateral review focuses on the facts of the individual case, and its
purpose is to correct the most egregious errors that cause actual harm. Coggin, 182
Wash. 2d at 122.
A petitioner who collaterally attacks his conviction must satisfy a higher burden
33
No. 26830-6-III; No. 26204-9-III
State v. Fort,' consolo with In re Pers. Restraint 0/Fort
than an appellant on direct review. In re Pers. Restraint o/Stockwell, 179 Wash. 2d 588,
596-97, 316 P .3d 1007 (2014). Whereas a presumption of prejudice is appropriate for
direct review in some cases, that presumption may not be proper for collateral review.
Stockwell, 179 Wash. 2d at 596-97. Even in those cases when the error would never be
harmless on direct review, our Supreme Court has not adopted a categorical rule that
would equate per se prejudice on collateral review with per se prejudice on direct review.
In re Coggin, 182 Wash. 2d at 120. Instead, generally, for a petitioner to prevail in a
personal restraint petition, the petitioner must establish by a preponderance of the
evidence that the constitutional error worked to his actual and substantial prejudice. In re
Pers. Restraint o/Speight, 182 Wash. 2d at 107 (2014); Coggin, 182 Wash. 2d at 116.
Importantly for Dallin Fort's petition, this rule of actual and substantial prejudice applies
to assertions of public trial rights for the first time in a collateral attack. Speight, 182
Wash. 2d at 107; Coggin, 182 Wash. 2d at 116.
An anomaly exists with respect to prevailing in a personal restraint petition when
one encountered an infringement on open trial rights. On the one hand, when the
petitioner asserts his or her public trial rights directly, the petitioner must show actual
prejudice. Coggin, 182 Wash. 2d at 116; In re Pers. Restraint o/Stockwell, 160 Wn. App.
172,181,248 P.3d 576 (2011). No presumption of prejudice arises. Coggin, 182 Wash. 2d
at 120. On the other hand, when the petitioner asserts his or her public trial rights
indirectly, by arguing counsel engaged in ineffective assistance by not asserting his or her
34
No. 26830-6-111; No. 26204-9-111
State v. Fort; consolo with In re Pers. Restraint ofFort
public trial rights during an appeal, petitioner need not prove actual prejudice. In re Pers.
Restraint ofMorris, 176 Wash. 2d at 166 (2012); Coggin, 182 Wash. 2d at 119. Instead, the
general rule that prejudice is presumed prevails. Morris, 176 Wash. 2d at 166; Coggin, 182
Wash. 2d at 119. Had the accused's appellate counsel raised this issue on direct appeal, the
accused would have received a new trial. Morris, 176 Wash. 2d at 166; Coggin, 182 Wash. 2d
at 119. According to the Supreme Court, under such circumstances, no clearer prejudice
could be established. Morris, 176 Wash. 2d at 166; Coggin, 182 Wash. 2d at 119.
This anomaly should be criticized. Open courts is a constitutional demand of the
highest priority. The right to effective assistance of counsel, although important, does not
hold as much importance as public trials. As Justice Stephens wrote, in a dissent in
Coggin, the right to effective assistance of counsel has never been deemed deserving of
greater protection than the right to a public trial. 182 Wash. 2d at 131 n.5 (Stephens, J.,
dissenting). To the contrary, since the violation of a public trial right is considered
structural error and not subject to a harmless error analysis, the right to a public trial
should receive priority in a personal restraint petition.
The outcome of a personal restraint petition should not depend on whether the
petitioner uses the enchanted words "ineffective assistance of counsel" as opposed to the
mundane phrase "public trial right." One may not do indirectly what the law prohibits
one from doing directly. Smith v. Orthopedics In!'I., Ltd., PS, 170 Wn.2d 659,668-69,
244 P.3d 939 (2010); State v. Demery, 144 Wash. 2d 753, 773 n.9, 30 P.3d 1278 (2001).
35
No. 26830-6-III; No. 26204-9-111
State v. Fort; consolo with In re Pers. Restraint ofFort
This principle shows that performing an act indirectly is the same as performing an act
directly. The converse should be true. The law should treat one as taking a necessary
step indirectly what one otherwise does directly. If one directly asserts, in a personal
restraint petition, that his public trial rights were violated during a criminal trial or appeal,
the law should assume he also indirectly asserts his open court rights through his right to
effective assistance of counsel. Otherwise, the law penalizes one who directly asserts a
right, rather than raises the privilege indirectly. A failure to raise the issue indirectly
would be ineffectiveness compounded on earlier ineffectiveness.
The Washington Supreme Court, in Coggin and Speight, addressed the question of
whether a petitioner must show actual prejudice when he asserts a violation of his public
trial rights through a personal restraint petition. In each case, the trial court questioned
jurors injudge's chambers, but the defendant failed to raise the violation of his public
trial rights on direct appeal. Each defendant sought to raise his respective constitutional
rights by personal restraint petition. Because neither defendant showed prejudice by the
court closure, each defendant's conviction was affirmed.
In Coggin, the lead case, the state high court noted that, while a defendant's public
trial rights are implicated by in-chambers voir dire, prejudice is not conclusive, nor can it
be presumed on collateral review. Prejudice is not conclusive because a limited trial
closure could be justified if the trial court closes the courtroom after applying the Bone-
Club factors. Although some errors which result in per se prejudice on direct review will
36
No. 26830-6-III; No. 26204-9-III
State v. Fort; consolo with In re Pers. Restraint ofFort
also be per se prejudicial on collateral attack, the interests of finality of litigation demand
that a higher standard be satisfied in a collateral proceeding. Coggin, 182 Wash. 2d at 122.
The principles of finality outweigh any public trial rights when the petitioner raises the
public trial right issue for the first time on collateral review. Coggin, 182 Wash. 2d at 122.
Why the principles of finality outweigh public trial rights, but not effective assistance of
counsel, on collateral review is inexplicable.
In Coggin, the State charged William Coggin with rape. The trial judge and the
parties were concerned with juror impartiality because the case had received significant
news coverage. According to the Supreme Court, private questioning in chambers likely
worked to benefit Coggin by protecting his right to a fair trial by an impartial jury.
Justice Stephens dissented in Coggin, 182 Wash. 2d at 126. Justice Stephens noted
the critical importance of open trials to our democratic society. The jury selection
process, as an indispensable component of a criminal trial, should remain open to public
viewing. According to the dissent, courts should protect the public trial right by
considering an uninvited, unwaived violation as always prejudicial. An infringement of
the public trial right is a structural error and harmless error analysis does not apply to a
structural error. Coggin, 182 Wash. 2d at 126-28 (Stephens, J., dissenting). Since courts
cannot gauge the prejudice of an unjustified courtroom closure, prejudice must
necessarily be implied. While the cost of a retrial is high in terms of a financial burden
on a county and the emotional impact on a victim and witnesses, a single public trial right
37
No. 26830-6-IIl; No. 26204-9-IlI
State v. Fort; consolo with In re Pers. Restraint 0/Fort
violation is worth the cost of a second trial. Justice Stephens addressed the majority's
conclusion that closure of voir dire in William Coggin's trial led to a fairer trial, by
noting an absence of evidence regarding the effect of the closed voir dire. She also
questioned the validity of the assumption that a closed voir dire ensures fair trials, when
the United States Supreme Court, in Press-Enterprise Co. v. Superior Court o/CA, 464
U.S. at 503 (1984), rejected the State's argument that voir dire benefited the defendant in
a rape and murder trial because juror responses were more candid with the press absent.
The United States Supreme Court rejected the argument that openness is necessarily
opposed to fairness. Justice Stephens' dissent in Coggin also extended to a dissent in
Speight.
In Dallin Fort's case, the closure may have operated to the detriment of Dallin
Fort's father, who declared he would have objected to the closure. Dallin Fort, however,
under the reasoning of Coggin, cannot show that the closure worked to his actual and
substantial prejudice. Fort's chances of obtaining an impartial jury increased with the
temporary closure of the courtroom. Thus, we reject Fort's request, in his personal
restraint petition, for a new trial because his trial violated his right to an open courtroom
and public jury selection.
We move to Dallin Fort's argument, in his personal restraint petition, that he
experienced ineffective assistance of counsel. In April 2015, Dallin Fort argued for the
first time that appellate counsel for his first direct appeal was ineffective for not asserting
38
No. 26830-6-111; No. 26204-9-111
State v. Fort; canso!. with In re Pers. Restraint ofFort
a public trial violation. We must now ask whether Fort must show actual and substantial
prejudice, within his personal restraint petition, for success in arguing ineffective
assistance of counsel.
We already answered this question. In re Personal Restraint ofOrange, 152
Wash. 2d 795 (2004) and In re Personal Restraint ofMorris, 176 Wash. 2d 157 (2012) control.
In each decision, the Supreme Court granted the personal restraint petitioner a new trial
on the basis that his appellate counsel was ineffective when failing to assert his public
trial rights during the direct appeal. The Orange court held that a public trial error is
presumptively prejudicial, even in the confines of a personal restraint petition, so that
appellant's counsel failure to raise the issue on appeal was both deficient and prejudicial.
The Supreme Court affirmed the Orange holding in In re Personal Restraint ofMorris,
176 Wash. 2d 157,288 P.3d 1140 (2012).
Timeliness ofIneffective Assistance ofCounsel Allegation
Dallin Fort filed a supplemental brief appending his ineffective assistance of
counsel argument to his original public trial right allegation. Fort has not formally
amended his petition to add the ineffective assistance of counsel allegation. We
determine to consider the supplemental brief as an amendment anyway.
The Rules of Appellate Procedure (RAPs) govern personal restraint petitions. In
re Personal Restraint Petition ofHaghighi, 178 Wash. 2d at 446 (2013). The RAPs neither
authorize nor prohibit amendments to personal restraint petitions. Haghighi, 178 Wash. 2d
39 No. 26830·6·III; No. 26204·9-III
State v. Fort; conso!. with In re Pers. Restraint ofFort
at 446. Washington courts, however, allow an amendment provided the amendment is
timely asserted. Haghighi, 178 Wash. 2d at 446; In re Pers. Restraint ofBonds, 165 Wash. 2d
135, 140, 196 P.3d 672 (2008). Washington law bars the amendment from relating back
to the time of the filing of the personal restraint petition for purposes of complying with
the one-year time limit. Haghighi, 178 Wash. 2d at 446; In re Pers. Restraint ofBonds, 165
Wash. 2d at 140.
Since the RAPs do not formally authorize an amendment, it follows that the rules
do not prescribe the format for an amendment or require that any pleading be labeled as
an "amendment." RAP 1.2(a) directs us to "liberally" interpret the appellate rules to
"promote justice and facilitate the decision of cases on the merits." RAP 16.17 applies
RAP 1.2 to a personal restraint petition. Thus, we consider Dallin Fort's April 2015
supplement brief an amendment expressly asserting ineffective assistance of counsel. We
must now determine whether Fort timely filed his amendment.
RCW 10.73.090 imposes a one-year limitation period upon the filing of a
personal restraint petition. The one-year time bar stands as a formidable obstacle to
many late-recognized claims. Coggin, 182 Wash. 2d at 135 (2014) (Stephens, 1.,
dissenting). The one-year commences when the petitioner's judgment becomes "final."
In re Pers. Restraint ofSkylstad, 160 Wash. 2d 944, 947, 162 P .3d 413 (2007). The statute
reads:
(1) No petition or motion for collateral attack on a judgment and
40
No. 26830-6-111; No. 26204-9-111
State v. Fort; conso!. with In re Pers. Restraint ofFort
sentence in a criminal case may be filed more than one year after the
judgment becomes final if the judgment and sentence is valid on its face
and was rendered by a court of competent jurisdiction.
(2) For the purposes of this section, "collateral attack" means any
form of postconviction relief other than a direct appeaL "Collateral attack"
includes, but is not limited to, a personal restraint petition, a habeas corpus
petition, a motion to vacate judgment, a motion to withdraw guilty plea, a
motion for a new trial, and a motion to arrest judgment.
(3) For the purposes of this section, a judgment becomes final on
the last of the following dates:
(a) The date it is filed with the clerk of the trial court;
(b) The date that an appellate court issues its mandate disposing of a
timely direct appeal from the conviction; or
(c) The date that the United States Supreme Court denies a timely
petition for certiorari to review a decision affirming the conviction on direct
appeal. The filing of a motion to reconsider denial of certiorari does not
prevent a judgment from becoming finaL
RCW 10.73.100 lists six exceptions to the one-year limitation, none of which apply to
Dallin Fort's petition. We must determine when DaHin Fort's judgment became final.
We conclude it is not yet finaL
Dallin Fort's case carries a long history. The jury convicted DaHin Fort of two
counts in February 2006, and the trial court sentenced Fort in April 2006. Fort timely
appealed. In September 2007, this reviewing court upheld both convictions but remanded
for sentencing. In December 2007, this appeals court issued its mandate to the superior
court. In January 2008, the trial court resentenced Dallin Fort to a lower number of
months than the original sentence. Fort again appealed to this court and the second
appeal remains pending.
In the meantime, Dallin Fort filed his personal restraint petition in June 2007, in
41
No. 26830-6-111; No. 26204-9-111
State v. Fort; conso!. with In re Pers. Restraint ofFort
which he solely argued that his public trial rights were violated. Before this court
entertained the petition and, in April 2015, Fort filed a supplemental brief arguing
ineffective assistance of counsel from his first appeal counsel by a failure to argue the
violation of his public trial right.
Two Washington decisions vie for primacy in our determination of whether Dallin
Fort asserted ineffective assistance of counsel within one year of his conviction being
final: State v. Kilgore, 167 Wash. 2d 28 (2009) and In re Personal Restraint ofSkylstad, 160
Wash. 2d 944 (2007). In State v. Kilgore, the Supreme Court ruled a judgment to be final,
for purposes of retroactivity analysis, upon the issuance of its mandate, despite a remand
to the trial court. The Court of Appeals reversed two of Mark Kilgore's convictions, but
affirmed five other convictions. The Court of Appeals remanded for further proceedings,
which could have included retrial of the two reversed counts. Kilgore did not challenge
his sentence on appeal. The Supreme Court accepted review, affirmed the Court of
Appeals, and mandated the case to the superior court for further proceedings consistent
with the high court's opinion.
On remand, in State v. Kilgore, the State declined to retry Mark Kilgore on the two
reversed convictions. The mandate did not authorize the trial court to resentence Kilgore.
Therefore, the superior court declined Kilgore's motion for resentencing and instead
corrected the original judgment and sentence to reflect the reversals. The superior court
also ruled that the terms and conditions of the original judgment and sentence remained
42
No. 26830-6-111; No. 26204-9-111
State v. Fort,' conso!. with In re Pers. Restraint ofFort
in full force and effect. As a result, the superior court also denied Kilgore's request to
apply retroactively the United States Supreme Court's decision in Blakely v. Washington,
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) on the theory that the correction
of the sentence did not destroy the judgment's earlier finality.
On appeal for the second time, the Supreme Court, in State v. Kilgore, confirmed
the trial court's denial of retrospective application of Blakely. The Supreme Court
reasoned that Kilgore's judgment was final on its original remand because the superior
court exercised no discretion when correcting the judgment and sentence. The Supreme
Court distinguished In re Personal Restraint ofSkylstad on the basis that the Skylstad
trial court exercised independent judgment, on remand, by imposing a new judgment and
sentence. Kilgore, 167 Wash. 2d at 36 n.5.
In our second decision, In re Personal Restraint ofSkylstad, 160 Wash. 2d 944
(2007), the state Supreme Court addressed whether a judgment is final if a defendant's
sentence is still under appeal. Scott Skylstad filed a personal restraint petition during the
second of two direct appeals, more than one year after his conviction but while his
sentence was on appeal. The Court of Appeals held that Skylstad's personal restraint
petition was time barred. The Supreme Court reversed and remanded to the Court of
Appeals to determine the merits of Sky1stad's petition.
The Skylstad court held that Skylstad's judgment was not final because his
sentence was still being appealed. A jury convicted Skylstad of first degree robbery with
43
No. 26830-6-III; No. 26204-9-II1
State v. Fort; consolo with In re Pers. Restraint ofFort
a fireann enhancement on February 8,2002. On October 7,2003, the Court of Appeals
affinned the conviction, but reversed the sentence. The Supreme Court denied review
and the Court of Appeals issued its mandate on May 14,2004. The trial court
resentenced Skylstad on July 28, 2004, and Skylstad appealed again. On October 11,
2005, the Court of Appeals affinned Skylstad's sentence. On November 21,2005, during
the pendency of his second appeal, Skylstad filed his personal restraint petition. On
September 6,2006, the Supreme Court denied review of the opinion in the second direct
appeal. On September 15, 2006, the Court of Appeals issued a final mandate in the case.
The Supreme Court, in Skylstad, held that, in a criminal proceeding, a final
judgment ends the litigation, leaving nothing for the court to do but execute the judgment.
160 Wash. 2d at 949. Upon the first mandate issued by the Court of Appeals, more steps
needed to be perfonned than simply execute the judgment. The superior court still had to
determine Skylstad's new sentence. Upon a sentence being reversed, the finality of a
judgment is destroyed. In a criminal case, the sentence constitutes the judgment against
the accused, and, hence, there can be no judgment against the defendant until
pronouncement of sentence. Litigation on the merits continued and Skylstad's judgment
could not be final until his sentence was final. "[U]nlike Kilgore, Skylstad's sentence
was reversed on appeal and his case remanded for resentencing. Until the trial court
exercised its independent judgment by imposing a new judgment and sentence, Skylstad
had no sentence." Kilgore, 167 Wash. 2d at 36 n.S (citation omitted). Because the second
44
No. 26830-6-III; No. 26204-9-III
State v. Fort; canso!. with In re Pers. Restraint a/Fort
appeal was still pending, no final judgment was entered and the one-year limitation had
not yet begun.
Dallin Fort's recent amendment in his personal restraint petition aligns more with
the fact pattern in Skylstad than in Kilgore. When this reviewing court remanded the case
in 2007 for resentencing, the trial court exercised its discretion when imposing the new
sentence, rather than merely effecting a clerical change. Until the trial court exercised
that discretion, Fort had no sentence. The trial court imposed a lesser sentence. Fort
timely appealed the trial court a second time and the appeal still lies within this court.
Following the lower court's exercise of discretion, we are yet to issue a mandate. Dallin
Fort's amendment of his personal restraint petition precedes finality and is thus timely.
We should also mention two other decisions, which contrast with Dallin Fort's
personal restraint petition. In In re Personal Restraint a/Copland, 176 Wash. App. 432,
441,309 P.3d 626 (2013), review denied, 182 Wn.2d 1009,343 P.3d 760 (2015), we
rejected Walter Copland's request, in his supplemental personal restraint petition brief, to
address an ineffective assistance of counsel allegation. In In re Personal Restraint
Petition 0/Haghighi, 178 Wash. 2d 435 (2013), the Supreme Court rejected Nadder
Haghighi's amended personal restraint petition raising an ineffective assistance of
counsel theory. In each case, the petitioner filed his personal restraint petition within one
year of finality of his criminal judgment, but failed to raise the ineffective assistance of
counsel argument until one year after finality ofjudgment.
45
No. 26830-6-111; No. 26204-9-111
State v. Fort; conso!. with In re Pers. Restraint ofFort
Once again, Dallin Fort raises his ineffective assistance of counsel theory within
one year of finality, since his judgment is not yet final. Because Fort's claim of
ineffective assistance is timely, we presume prejudice.
Stay ofJudgment and Sentence
Dallin Fort assigns error to the trial court's refusal to stay enforcement of his
judgment and sentence pending appellate review. Since we vacate Dallin Fort's
judgment and sentence, this assignment of error is moot.
CONCLUSION
We grant DalIin Fort his personal restraint petition. We vacate his 2005 judgment
and sentence and remand to direct that the trial court conduct a new trial.
Fearing, J.
WE CONCUR:
Lawrence-Berrey, J.
46
No. 26830-6-111; No. 26204-9-111
State v. Fort; canso!. with In re Pers. Restraint ofFort
Appendix
State V. Dallin Fort
Chronology
November 10,2005 State filed charges against Fort.
January 30, 2006 Trial began. During voir dire, trial court interviews potential
jurors in closed chambers.
February 3, 2006 Jury convicted Fort.
April 3, 2006 Trial court sentenced Fort to a minimum of 132 months.
April 21, 2006 Fort appealed to this court.
October 24, 2006 Fort filed the brief for his first direct appeal. Fort did not
claim a violation of his public trial rights during this first appeal.
December 15, 2006 Trial court ordered voir dire and opening statements from
Dallin Fort's trial to be transcribed at public expense.
June 12,2006 Fort filed a personal restraint petition, in which he argued that
the trial court violated his and the public's right to the open administration ofjustice.
September 4,2007 In an unpublished opinion, this court affirmed Dallin Fort's
convictions, but reversed the sentence and remanded for resentencing. This court held
that the trial court erred in failing to count Fort's two convictions as the same criminal
conduct.
.september 13,2007 This court published its decision in State V. Frawley, in which
we reversed and remanded a criminal prosecution for a new trial because the trial court
closed voir dire without weighing the Bone-Club factors on the record.
December 4,2007 This court mandated Dallin Fort's case to the trial court for
resentencing.
January 3,2008 Fort moved the trial court to grant him a new trial or vacate
his judgment and sentence based on this court's decisions in State V. Frawley.
47
No. 26830-6-III; No. 26204-9-III
State v. Fort; consolo with In re Pers. Restraint 0/ Fort
January 14,2008 This court stayed its consideration ofDaHin Fort's personal
restraint petition pending our Supreme Court's decision on whether to accept review in
Frawley.
January 25, 2008 The trial court held a hearing to resentence Fort according to
this court's September 4, 2007 decision and December 4, 2007 mandate. Before
resentencing, the trial court heard argument on Fort's motion for a new trial because of a
violation of public trial rights. The trial court refused to apply this court's ruling in
Frawley retroactively and denied Fort's motion. The trial court resentenced Fort to a
minimum of 108 months confinement with a maximum term of life.
February 5, 2008 DaHin Fort filed his second notice of appeal.
March 19,2008 DaHin Fort filed his opening brief for his second direct
appeal. Fort assigned error to the trial court's denial, at resentencing, of his motion for a
new trial because of a violation of his public trial right.
July 8,2008 This court stayed DaHin Fort's second direct appeal because
of pending Supreme Court decisions.
February 26, 2013 This court lifted its stay of Fort's second direct appeal. We
directed the parties to provide supplemental briefing.
April 8, 2013 The Supreme Court granted review of this court decision in
Frawley.
April 26, 2013 This court scheduled Fort's second direct appeal for
consideration on June 12,2013 without oral argument.
May 3, 2013 This court reinstituted its stay of Fort's second direct appeal
given our Supreme Court's granting of review of State V. Frawley, 140 Wash. App. 713,
167 P.3d 593 (2007). In the meantime, Fort's personal restraint petition remained stayed.
March 24,2014 This court expanded the stay of Dallin Fort's personal
restraint petition to await, in addition to Frawley, our Supreme Court's disposition and
mandate in In re Personal Restraint o/Speight and In re Personal Restraint o/Coggin.
September 25,2014 The state Supreme Court published its opinion in Frawley.
48
No. 26830-6-III; No. 26204-9-III
State v. Fort; conso!. with In re Pers. Restraint ofFort
November 5, 2014 This court lifted its second stay of Fort's second direct
appeal. We also granted the parties an opportunity to file supplemental briefing
regarding the applicability of our Supreme Court's opinion in Frawley.
December 11,2014 The Supreme Court published its decision in both Speight and
Coggin.
February 19,2015 This court lifted its stay of Fort's personal restraint petition
and consolidated the petition with Fort's second direct appeal. Dallin Fort and the State
both accepted this court's invitation to file supplemental briefing.
April 3, 2015 In his supplement brief, Fort argued for the first time that
appellate counsel for his first direct appeal was ineffective for not asserting a public trial
right violation.
Ir
rI,
f.
49