                                                                              FILED 

                                                                            OCT 8, 2015 

                                                                   In the Office of the Clerk of Court 

                                                                 W A State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


In re Personal Restraint Petition of:          )         No. 25729-1-111
                                               )
JOHN E. MINES, Jr.,                            )
                                               )         PUBLISHED OPINION
                     Petitioner.               )

       BROWN J. - In 2002, John Edward Mines, Jr. and two other men picked up a

woman in their van. When the woman refused to perform sexually for Mr. Mines, she

was violently raped, severely beaten, and strangled. Eventually, the men threw her out of

the van in an isolated area. She crawled to a residence and reported the rape. The victim

identified Mr. Mines in a police department photomontage. He was charged with first

degree rape, second degree assault, and first degree kidnapping. A jury found him guilty

as charged. His judgment and sentence was affirmed on discretionary review by the

Washington Supreme Court. See State v. Mines, 163 Wn.2d 387, 179 P.3d 835 (2008).

In this timely personal restraint petition, he contends (1) his public trial right was violated

when certain potential jurors were interviewed privately, (2) the evidence was insufficient

to show that he was armed with a deadly weapon when he committed the assault, and (3)

his trial counsel was ineffective for failing to object to hearsay testimony.
No. 25729-I-III
In re Pers. Restraint ofMines


                                          FACTS

       Late one night in November 2002, J.R. was walking home in Spokane after

smoking cocaine and ingesting heroin. 1 A van containing three men stopped and asked if

. she would like a ride. She accepted and got into the back ofthe van with Mr. Mines.

When Mr. Mines asked her to perform oral sex, she refused and asked to get out. She

was then severely beaten, strangled, threatened with death, and raped in the vagina and

anus with a plastic soda bottle and a screwdriver.

       The State charged Mr. Mines with first degree rape, second degree assault, and

first degree kidnapping. One of Mr. Mines' codefendants, Clinton Cramer, testified

against him at trial. The jury found him guilty as charged. He was sentenced to an

indeterminate life sentence under former RCW 9.94A.712 (2001) (sentencing for sexual

offenses) with an exceptionally high minimum sentence based upon a finding of

deliberate cruelty.

       On appeal, this court remanded the case for resentencing pursuant to Blakely v.

Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), but later withdrew

the opinion and stayed the case pending the decisions in State v. Borboa, 157 Wn.2d 108,

135 P.3d 469 (2006) and State v. Clarke, 156 Wn.2d 880, 134 P.3d 188 (2006) (holding

that exceptional minimum sentences under RCW 9.94A.712 do not always violate



       I   The facts are taken from Mines, 163 Wn.2d at 389-92.

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No. 25729-1-III
In re Pers. Restraint ofMines


Blakely). See State v. Mines, unpublished opinion no. 21989-5-III (Wa. Ct. App. 2005)

noted at 2005 WL 1705780. The Washington Supreme Court accepted discretionary

review on the sufficiency of the evidence and affirmed his judgment and sentence. 2

Mines, 163 Wn.2d at 391-92. The mandate was issued on May 5, 2008.

       Mr. Mines filed this pro se personal restraint petition in December 2006, while

discretionary review in the Supreme Court was pending. In the timely original petition,

he claimed insufficiency of the evidence to support second degree assault and ineffective

assistance of trial counsel. This court stayed the matter pending the decision on his

appeal. Through counsel, Mr. Mines filed a supplemental brief in April 2008, contending

his public trial right was violated when the trial court conducted private voir dire of some

potential jurors without first holding a hearing to consider the Bone-Club factors. State v.

Bone-Club, 128 Wn.2d 254, 258-59, 906 P.2d 325 (1995). After the stay was lifted in

May 2008, the State moved to stay the petition pending the decisions in State v. Momah,

167 Wn.2d 140, 217 P.3d 321 (2009), and State v. Strode, 167 Wn.2d 222, 217 P.3d 310

(2009) (public trial rights cases). Mr. Mines agreed to the stay, which was granted in

June 2008.

       After the June 2008 stay was lifted on March 23, 2010, the State filed a response

brief and Mr. Mines filed a reply. Then, in August 2010, the matter was again stayed


       2 Mr.   Mines apparently abandoned the Blakely issue. See Mines, 163 Wn.2d at
391.

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No. 25729-1-III
In re Pers. Restraint 0/ Mines


pending the mandate in State v. Wise, 176 Wn.2d 1,288 P.3d 1113 (2012). This stay was

lifted on January 11, 20l3, and the parties filed supplemental briefing on the applicability

of Wise as well as its companion cases: State v. Paumier, 176 Wn.2d 29, 288 P.3d 1126

(2012) and In re Personal Restraint 0/ Morris, 176 Wn.2d 157,288 P.3d 1140 (2012).

On March 4, 20l3, the Acting Chief Judge of this court entered an order referring the

personal restraint petition to a panel ofjudges for determination on the merits.

       The case was set for oral argument on the June l3, 20 l3 docket. The proceedings

were again stayed, however; this time pending the decision and mandate by the

Washington Supreme Court in In re Personal Restraint 0/ Hartman, no. 81225-0. After

Mr. Hartman died and his case was closed, the stay on this case was lifted and

immediately another stay was entered pending the decisions and mandates in In re

Personal Restraint o/Speight, no. 89693-3, and In re Personal Restraint o/Coggin, no.

89694-1. These cases were decided and mandated and the stay was finally lifted on

January 26,2015. See In re Pers. Restraint o/Speight, 182 Wn.2d 103,340 P.3d 207

(2014); In re Pers. Restraint o/Coggin, 182 Wn.2d 115,340 P.3d 810 (2014).

       Meanwhile, Mr. Mines obtained new counsel, who filed a motion to amend his

petition on September 19, 20 l3. He asked this court "in the interests of justice" to allow

him to include an ineffective assistance claim based on the previous attorneys' failure to

raise the public trial issue on appeal or in the petition. Motion to Amend PRP at 1. The

motion was referred to the panel for consideration with the petition. The parties have

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No. 25729-1-III
In re Pers. Restraint 0/ Mines


submitted supplemental briefing on Speight and Coggin and to address the motion to

amend the petition.

                                 STANDARDS OF REVIEW

       Relief by way of a collateral challenge to a judgment and sentence is

extraordinary. In re Pers. Restraint a/Coats, 173 Wn.2d 123, 132,267 P.3d 324 (2011).

Generally, a personal restraint petition filed within one year after the judgment and

sentence is final may challenge the conviction on any grounds, but must meet a high

standard. Id. The petitioner must show with a preponderance of the evidence that he or

she was actually and substantially prejudiced by a violation of constitutional rights, or

that his or her trial suffered from a non constitutional defect that inherently resulted in a

complete miscarriage ofjustice. Id.; In re Pers. Restraint a/Brett, 142 Wn.2d 868, 874,

16 P.3d 601 (2001). The petitioner may not renew an issue that was raised and rejected

on direct appeal unless the interests ofjustice require relitigation of that issue. In re Pers.

Restraint a/Yates, 177 Wn.2d 1, 17,296 P.3d 872 (2013). Washington courts have

limited the relief considered in the "interests ofjustice" to cases where an intervening

change in the law or some other circumstance justified the failure to raise a crucial

argument on appeal. Id. A petitioner who renews an issue may not merely present

different factual allegations or raise different legal arguments. Id.




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     No. 25729-I-III
     In re Pers. Restraint 0/ Mines


                                              ANALYSIS

                                            A. Public Trial

            The issue is whether Mr. Mines' constitutional right to a public trial was violated

     when some of the potential jurors were interviewed in a private jury room. He contends

     he is entitled to. a new trial because the error is structural and therefore presumed

     prejudicial. In his untimely motion to supplement the petition he contends he had

     ineffective assistance of counsel because previous attorneys failed to raise the public trial

     issue on appeal and in his timely personal restraint petition.

            The state and federal constitutions guarantee criminal defendants a right to a

     public trial. See WASH. CONST. art. I, § 22 (the "accused shall have the right ... to have

     a speedy public trial") and U.S. CONST. amend. VI ("the accused shall enjoy the right to a

     speedy and public trial"); In re Pers. Restraint o/Orange, 152 Wn.2d 795, 804, 100 P.3d

     291 (2005). Additionally, article I, section 10 of the Washington Constitution guarantees

     the public's open access to judicial proceedings ("[j]ustice in all cases shall be
1

11   administered openly"). Violation of the public trial right is considered a structural error

     because it affects the framework within which the trial proceeds. State v. Wise, 176

     Wn.2d at 5. As a result, violation of the public trial right is presumed prejudicial on

     direct appeal, even when the violation is not preserved by objection. Id. at 16. When a

     public trial violation is claimed for the first time in a personal restraint petition, however,




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No. 25729-1-III
In re Pers. Restraint 0/ Mines


the petitioner generally must show actual and substantial prejUdice. In re Pers. Restraint

o/Coggin, 182 Wn.2d at 116; In re Pers. Restraint o/Speight, 182 Wn.2d at 107.

       Although vital, the right to a public trial is not absolute. Wise, 179 Wn.2d at 9;

State v. Paumier, 176 Wn.2d 29,34-35,288 PJd 1126 (2012). A trial court may close a

courtroom if it first balances the public trial right against competing rights and interests,

using the five criteria established in Bone-Club, 128 Wn.2d at 258-59. 3 Wise, 176 Wn.2d

at 10. As summarized in Wise, the Bone-Club criteria require the trial court, on the

record, to at least (1) state the public trial right that will be lost by moving proceedings

into a private room, (2) identify the compelling interest that motivates the closure, (3)

weigh the competing rights, (4) give an opportunity to object, and (5) adopt the least

restrictive alternative of closure. Id. Although a trial court may close all or part of a trial



       3 The Bone-Club factors include:
               "1. The proponent of closure or sealing must make some showing
       [of a compelling interest], 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 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."

Bone-Club, 128 Wn.2d at 258-61 (alteration in original) (quoting Allied Daily

                                               7

No. 25729-1-III
In re Pers. Restraint ofMines


after considering the alternatives, it must'" resist a closure motion except under the most

unusual circumstances.'" Id. at 11 (quoting Bone-Club, 128 Wn.2d at 259).

       The public trial right extends to jury selection. Wise, 176 Wn.2d at 11. The right

applies to the questioning of individual prospective jurors. Id. (citing State v. Momah,

167 Wn.2d 140, 151-52,217 P.3d 321 (2009); State v. Strode, 167 Wn.2d 222, 227, 217

P.3d 310 (2009».

       Mr. Mines correctly argues the trial court did not consider the Bone-Club factors

on the record when it decided to interview certain potential jurors in chambers. On the

first day ofjury voir dire, the trial judge gave the jury panel a questionnaire. After

reviewing the questionnaire, the judge began holding proceedings in a closed jury room

for individual voir dire ofjurors who had stated they had some sort of experience with

sexual abuse or sexual abuse cases. Mr. Mines, his attorney, the deputy prosecutor, and

the judge were present. The trial judge began by stating to the first juror:

       [W]e are interviewing people who have answered yes to our questionnaire. 

       I think you can tell, obviously, why. And we are doing it back here. Rather 

       than have you do it in front of a large group of strangers, we will have you 

       do it in front of a small group of strangers. 


Report of Proceedings (RP) (Feb 10,2003) at 5. Similar statements were made to each

panel member interviewed. Then the trial judge conducted the interviews, asking each




Newspapers of Wash. v. Eikenberry, 121 Wn.2d 205,210-11,848 P.2d 1258 (1993».

                                              8
No. 25729-I-III
In re Pers. Restraint ofMines


potential juror to explain the circumstance involving sexual abuse or any other conflict.

Defense counsel asked eight potential jurors follow-up questions.

       As the record shows, the trial judge initiated the closed proceeding, never

mentioned the public trial right, did not weigh competing rights or give an opportunity to

object, and did not consider less restrictive alternatives. The judge apparently adopted

the partial closure to protect the privacy of the jurors who had indicated possible conflicts

and to promote candid answers to sensitive questions. Jury privacy is an interest that the

trial court may consider when deciding whether to close part of a trial, but this privacy

interest must be weighed against the defendant's and the public's right to an open trial.

Wise, 176 Wn.2d at 10 n.3. In this case, the trial court did not weigh these interests.

Because the partial closure occurred without a Bone-Club examination, Mr. Mines'

article I, section 22 and Sixth Amendment public trial rights were violated.

       The State urges this court to find that Mr. Mines essentially waived any error by

participating in the private voir dire. A defendant may waive his or her right to a public

trial if the waiver is knowingly, intelligently, and voluntarily given. State   V.   Frawley,

181 Wn.2d 452,461-62,334 P.3d 1022 (2014) (plurality opinion). Mr. Mines did not

waive his right to a public trial by failing to object to the partial closure of voir dire.

Wise, 176 Wn.2d at IS. The record does not show he knew he was waiving his right to a

public trial, understood what the right entailed, and voluntarily agreed to waive that right.




                                                9

 No. 25729-1-III
 In re Pers. Restraint ofMines


See State v. Shearer, 181 Wn.2d 564,575-76,334 P.3d 1078 (2014) (plurality opinion;

 McCloud, 1., concurring). Consequently, he did not waive his challenge.

       As discussed, a petitioner on collateral review generally must show with a

preponderance of the evidence that the constitutional error actually and substantially

. prejudiced him or her. Speight, 182 Wn.2d at 107. The sole exception to this

requirement is found in In re Personal Restraint ofMorris, 176 Wn.2d 157, 166,288

PJd 1140 (2012), which holds that prejudice is presumed when the petitioner alleges his

or her counsel was ineffective for failing to raise the public trial issue on appeal. Speight,

 182 Wn.2d at 107.

       Here, the trial judge erroneously closed the courtroom when he privately

questioned individual potential jurors without first conducting a Bone-Club analysis. See

Coggin, 182 Wn.2d at 118. But Mr. Mines fails to show he was actually and

substantially prejudiced by the closure. According to Mr. Mines, he was surrounded by

additional officers in the private jury room as a security measure. This increased police

presence, he contends, eroded the presumption of innocence. He also asserts that his

family members were unable to provide assistance and he was unable to consult with his

attorney due to the restrictive nature of the police presence. On the other hand, the record

shows the parties and the trial judge were concerned with juror bias because the case

involved severe sexual violence. Individual questioning of the selected jurors encouraged

more honest responses. Ultimately, Mr. Mines' conclusory allegations of the prejudicial

                                             10 

No. 25729-1-111
In re Pers. Restraint ofMines


nature of the additional officers are insufficient to show actual and substantial prejudice.

See In re Pers. Restraint ofLord, 152 Wn.2d 182, 188,94 P.3d 952 (2004) (the petitioner

may not rely on conclusory allegations); see also Holbrook v. Flynn, 475 U.S. 560, 106

S. Ct. 1340, 89 L. Ed. 2d 525 (1986) (increased police presence in a courtroom does not

give rise to a presumption of inherent prejudice).

       For the first time in supplemental briefing and a motion to amend the petition, Mr.

Mines claims appellate counsel was ineffective for failing to raise the public trial issue on

direct appeal. The motion to amend was filed in September 2013 and the supplemental

briefing was filed in February 2015, several years after the mandate of his judgment and

sentence on May 5, 2008. As discussed, a petitioner in a timely personal restraint petition

who claims appellate counsel was ineffective for failing to raise a public trial violation on

direct appeal is entitled to a presumption that the error was prejudicial and requires a new

trial. Speight, 182 Wn.2d at 107; Morris, 176 Wn.2d at 166. Here, however, the claim is

untimely. RCW 10.73.090(3)(b).     4




       4  We recently vacated a petitioner's judgment and sentence and remanded for a
new trial because the petitioner argued in a supplemental personal restraint petition that
his appellate counsel was ineffective in failing to assert public trial violations during an
appeal. See State v. Fort,     Wn. App. _ , noted at 2015 WL 5430243 * 17 (Wa. Ct.
App.2015). Unlike the circumstances here, the Fort petitioner's supplemental briefwas
timely. Consequently, the Fort petitioner was entitled to the presumption that his
appellate counsel's error was prejudicial. Id.; Morris, 176 Wn.2d at 166.

                                             11 

No. 25729-1-III
In re Pers. Restraint ofMines


       Mr. Mines argues his petition qualifies for an exception to the one-year time bar

because a significant change in the law occurred material to his conviction that applies

retroactively. RCW 10.73.1 OO( 6). He argues the Morris holding which presumes

prejudice when the petitioner alleges his or her counsel was ineffective for failing to raise

the public trial issue on appeal, is a significant change in applicable law. See Morris, 176

Wn.2d at 166. Mr. Mines argues Morris is significant because it refines and reaffirms In

re Personal Restraint ofOrange, 152 Wn.2d 795, 100 P.3d 291 (2004), which holds

prejudice is presumed and a petitioner is entitled to relief on collateral review when

appellate counsel fails to raise a public trial right violation.

       Recently, the Washington Supreme Court in In re Personal Restraint ofErhart,

183 Wn.2d 144,351 P.3d 137 (2015), addressed what constitutes a significant change in

the law. Mr. Erhart did not raise a public trial issue on appeal and filed an untimely

motion for discretionary review. Mr. Erhart argued his public trial claim fell within the

RCW 10.73.100(6) exemption to the one-year time bar because Wise, 176 Wn.2d 1, was

a significant change in the law that was material and retroactively applicable to his case.

Erhart, 193 Wn.2d at 148. The Wise court, 176 Wn.2d at 6, held closure of voir dire

without applying the Bone-Club factors was a structural error presumed prejudicial.

Because Wise was firmly grounded in well-established precedent and did not overrule

any previously controlling decision, the Erhart court held Wise was not a significant




                                               12 

No. 25729-1-III
In re Pers. Restraint ofMines


change in the law.s Erhart, 183 Wn.2d at 148. See also In re Pers. Restraint ofYung-

Cheng Tsai, 183 Wn.2d 91,351 P.3d 138 (2015) (a significant change in the law occurs

when an opinion effectively overturns a prior appellate decision that was determinative of

a material issue) (quoting In re Pers. Restraint ofGreening, 141 Wn.2d 687,697,9 P.3d

206 (2000)).

       Mr. Mines admits the decision in Morris is firmly grounded in the Washington

Supreme Court's 2004 decision in Orange. The Morris court states appellate counsel

"had but to look at this court's public trial jurisprudence to recognize" that closure of voir

dire to the public without a Bone-Club analysis was a presumptively prejudicial error on

direct appeal. Morris, 176 Wn.2d at 167. Morris' holding, 176 Wn.2d at 166-that

prejudice is presumed when a petitioner successfully alleges a public trial violation

through an ineffective assistance of appellate counsel claim--did not overrule any prior

appellate decision and therefore was not a significant change in the law. Consequently,

Mr. Mines' untimely attempt to amend his petition on the basis of Morris does not

qualify for the exemption in RCW 10.73.100(6).

       Mr. Mines next argues the one-year, time bar should be equitably tolled, citing In

re Personal Restraint ofHaghighi, 178 Wn.2d 435,309 P.3d 459 (2013) and In re


      s Erhart, 183 Wn.2d at 148, denied Mr. Erhart's untimely motion to amend his
motion for discretionary review to add a claim of ineffective assistance of counsel.
"Such a claim is time barred because it falls within neither RCW 10.73.090(1) nor RCW
10.73.100." Id.

                                             13 

 No. 25729-1-II1
 In re Pers. Restraint ofMines


 Personal Restraint ofBonds, 165 Wn;2d 135, 196 P.3d 672 (2008). He claims his fonner

 appellate lawyer's failure to investigate the public trial issue and his former petition

 lawyer's failure to raise the ineffective assistance of counsel issue were extraordinary

. circumstances justifying equitable relief.

        Equitable tolling "permits a court to allow an action to proceed when justice

requires it, even though a statutory time period has elapsed." Bonds, 165 Wn.2d at 141.

A petitioner who seeks to benefit from the equitable tolling doctrine must demonstrate

that the petition or amended petition was untimely due to bad faith, deception, or false

assurances. Id. at 141-42, 144. See also Haghighi, 178 Wn.2d at 448-49 ("Consistent

with the narrowness of the doctrine's applicability, principles of finality, and the multiple

avenues available for postconviction relief, we apply the civil standard [for equitable

tolling] and require the predicates of bad faith, deception, or false assurances.").

        Mr. Mines cites his appellate lawyer's failure to investigate the public trial issue as

one of the circumstances supporting equitable tolling of the one-year time bar. Appellate

counsel declared Mr. Mines wanted her to look into the public trial issue; she agreed to

do so, but she did not. But appellate counsel's inaction, even if it constitutes a false

assurance, did not affect Mr. Mines' ability to file a timely petition or amended petition

addressing the public trial issue. He does not address how bad faith, deception, or false

assurances caused his fonner lawyer to ignore the public trial issue in the timely-filed




                                               14                                                 f
                                                                                                  I

                                                                                                  I,
No. 25729-1-III
In re Pers. Restraint 0/ Mines


personal restraint petition. The record does not indicate equitable tolling is justified

under these circumstances. Haghighi, 178 Wn.2d at 448-49.

       Given our analysis, we conclude although Mr. Mines shows a violation of his right

to public trial, he fails to prove actual and substantial prejudice justifying relief. His

claim of ineffective assistance of counsel was untimely filed in a motion to amend the

petition; the motion is denied.

                                  B. Evidence Insufficiency

       The issue is whether the evidence is sufficient to show Mr. Mines was armed with

a deadly weapon when he committed second degree assault with a deadly weapon, RCW

9A.36.021(l)(c). This issue was addressed and rejected on its merits in the appeal and

Mr. Mines offers no reasons why, in the interests ofjustice, it should be considered again

here. Mines, 163 Wn.2d at 392; see In re Pers. Restraint o/Yates, 177 Wn.2d 1, 17,296

P.3d 872 (2013) (reexamination of an issue decided in a prior appeal is limited to cases

where an intervening change in the law or some other circumstance justified the failure to

raise a crucial argument on appeal). Therefore, Mr. Mines does not show the evidence

insufficiency issue should be reconsidered in the interests ofjustice.

                           C. Ineffective Assistance of Counsel

       The issue is whether trial counsel was ineffective in failing to object to hearsay

testimony by Mr. Mines' codefendant, Mr. Cramer. During direct-examination, Mr.

Cramer described what was happening in the back of the van involving the victim and

                                              15 

  No. 25729-I-II1
. In re Pers. Restraint 0/ Mines


Mr. Mines. See Mines, 163 Wn.2d at 391. Defense counsel did not object to this

testimony. Mr. Mines contends Mr. Cramer's testimony prejudiced the jury against him.

        Denial of a defendant's right to effective assistance of counsel is an error of

constitutional magnitude. State v. Nichols, 161 Wn.2d 1,9, 162 P.3d 1122 (2007). To

prove ineffective assistance of counsel, Mr. Mines must show with a preponderance of

the evidence that his counsel's performance fell below an objective standard of

reasonableness and that this deficiency prejudiced his defense. Strickland v. Washington,

466 U.S. 668,   687~88,    104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State   V.   McFarland, 127

Wn.2d 322,334-35,899 P.2d 1251 (1995). Under the prejudice prong, he must show a

reasonable probability that if counsel had not been deficient, the result of the trial would

have been different. In re Pers. Restraint o/Crace, 174 Wn.2d 835, 843,280 P.3d 1102

(2012). Counsel is presumed to be effective, and Mr. Mines must show an absence of

legitimate strategic reasons to support his counsel's challenged conduct. McFarland, 127

Wn.2d at 335; State   V.   Hendrickson, 129 Wn.2d 61,77-78,917 P.2d 563 (1996).

Because he rests his claim of ineffective assistance of counsel on defense counsel's

failure to object, he must show the trial court likely would have sustained an objection.

State v. Fortun-Cebada, 158 Wn. App. 158, 172,241 P.3d 800 (2010).

       Hearsay is an out-of-court statement made by someone other than the testifying

witness and offered for the truth of the matter asserted. ER 801(c). Under ER

80 1(d)(2)(v), the statement of a coconspirator made during the course of the conspiracy is

                                               16 

No. 25729-I-II1
In re Pers. Restraint ofMines


an exception to the rule that bars admission of hearsay evidence. Here, Mr. Cramer was a

codefendant describing the statements of a coconspirator made during the course of the

crime. The admission of these statements was proper under ER 80 I (d)(2)(v) and any

objection to them would have been overruled. Thus, Mr. Mines fails to show his trial

counsel's performance was deficient Strickland, 466 U.S. at 687-88. Accordingly, Mr.

Mines fails to show ineffective assistance of counseL

      Given our analysis, we dismiss Mr. Mines' petition, RAP 16.11 (b), and deny his

motion to amend the petition as untimely. RCW 10.73.090(1).



                                                        Brown, J.

WE CONCUR:


                                                        ~~.s. . _
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