 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                          Or"
In the Matter of the Personal                  )     No. 69593-2-1                 CT3




Restraint of                                   )                                          —i'


                                               )     DIVISION ONE                  r^     p -
CALVIN ARTIE EAGLE,                            )
                                               )     PUBLISHED OPINION
                               Petitioner.     )                                   5"
                                               )     FILED: July 18,2016           9?
                                                                                  cr,
                                                                                  rv



      Trickey, J. — Calvin Artie Eagle filed this personal restraint petition

challenging his convictions of one count of first degree rape of a child and two

counts of second degree rape of a child. He claims that the trial court violated

his federal and state constitutional rights to an open and public trial when it

arraigned him on an amended information in chambers prior to trial. He also
claims that his appellate counsel was constitutionally ineffective for failing to raise

this claim on direct appeal.

       We hold that the in-chambers arraignment on the amended information

violated Eagle's right to a public trial. But, because Eagle fails to demonstrate
actual and substantial prejudice from the violation to support his direct claim, and
because Eagle fails to show that his appellate counsel was ineffective in failing to
raise the claim on direct appeal, we conclude that Eagle is not entitled to

collateral relief. Accordingly, we deny Eagle's petition.

                                             FACTS

       In late 2009, a jury convicted Eagle of one count of first degree rape of a
child and two counts of second degree rape of a child. The facts underlying

these convictions are set forth in this court's prior unpublished opinion. State v.

Eagle, noted at 162 Wn. App. 1008, 2011 WL 2179261. In March 2010, the trial
No. 69593-2-1 / 2


court sentenced Eagle to an indeterminate sentence of 216 months to life.

       Eagle appealed to this court.       He argued, among other things, that a

conference in chambers regarding jury instructions violated his right to a public

trial, his trial attorney provided ineffective assistance of counsel, and the failure to

give a unanimity or Petrich1 instruction violated his right to a unanimous jury

verdict. Eagle, 2011 WL 2179261, at *1. On May 31, 2011, this court issued its

opinion affirming Eagle's convictions.          The Supreme Court denied Eagle's

petition for review. State v. Eagle, 173 Wn.2d 1002, 271 P.3d 248 (2011). The

mandate issued on December 14, 2012.

       Eagle subsequently filed this personal restraint petition. He raised three

claims regarding his right to a public trial. He claimed that his right to a public

trial was violated when the trial court: (1) conducted voir dire of individual jurors

in chambers and sealed juror questionnaires, (2) conducted a hearing in

chambers regarding text messages that Eagle received during trial, and (3)
arraigned Eagle on an amended information in a closed hearing in chambers.
Eagle also claimed that appellate counsel was constitutionally ineffective for
failing to raise these issues on direct appeal.

       On September 10, 2013, this court dismissed Eagle's claim regarding voir

dire and juror questionnaires.       It stayed Eagle's remaining claims pending
resolution of two Supreme Court cases—State v. Shearer, 181 Wn.2d 564, 334

P.3d 1078 (2014) and State v. Frawlev, 181 Wn.2d 452, 334 P.3d 1022 (2014).
       On August 4, 2015, this court lifted the stay and dismissed all of Eagle's
claims with the exception of whether the arraignment proceeding violated Eagle's

1 State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984).

                                            2
No. 69593-2-1 / 3


right to a public trial, which it referred to a panel of judges for determination on
the merits. At this court's request, the parties provided supplemental briefing on

this issue.

                                       ANALYSIS

                                 Right to a Public Trial

       Eagle argues that the trial court violated his constitutional rights to an
open and public trial when it arraigned him on an amended information in
chambers. We agree with Eagle that the trial court violated his right to a public
trial when it conducted the in-chambers arraignment on the amended
information.    However, because Eagle fails to show actual and substantial
prejudice from this error, we reject this claim.
        Both the state and federal constitutions guarantee criminal defendants the
right to a public trial.2 U.S. Const, amend. VI; Wash. Const, art. I, § 22. The
Washington Constitution also guarantees the right of an open trial to the public       3




Wash. Const, art. I, § 10. "These related constitutional provisions 'serve
 complimentary and interdependent functions in assuring fairness of our judicial
 system,'" and "are often collectively called 'the public trial right.'" State v. Love,
 183 Wn.2d 598, 605, 354 P.3d 841 (2015) (quoting State v. Bone-Club, 128
 Wn.2d 254, 259, 906 P.2d 325 (1995)), cert, denied, 136 S. Ct. 1524 (2016).
        "The public trial right is not absolute." State v. Wise, 176 Wn.2d 1, 9, 288
 2"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
 trial, by an impartial jury." U.S. Const, amend. VI.
 "In criminal prosecutions the accused shall have the right ... to have a speedy public
 trial by an impartial jury of the county in which the offense is charged to have been
 committed." Wash. Const, art. I, § 22.                                                    „
 3 "Justice in all cases shall be administered openly, and without unnecessary delay.
 Wash. Const, art. I, § 10.
No. 69593-2-1/4


P.3d 1113 (2012). The trial court may close the courtroom so long as it "justifies

the closure by conducting an on-the-record balancing of several factors,

commonly referred to as the Bone-Club factors." State v. Nionge. 181 Wn.2d

546, 553, 334 P.3d 1068, cert, denied, 135 S. Ct. 880 (2014).

       "A three-step framework guides our analysis in public trial cases. First, we

ask whether the public trial right attaches to the proceeding at issue." Love, 183
Wn.2d at 605. Second, if the right attaches, we ask whether a closure occurred.

Love, 183 Wn.2d at 605. Third, we ask whether the closure was justified. Love.

183 Wn.2d at 605. If we conclude that the right to a public trial does not apply to

the proceeding at issue, we need not reach the remaining steps of the analysis.
State v. Smith, 181 Wn.2d 508, 519, 334 P.3d 1049 (2014).

       "[N]ot every interaction between the court, counsel, and defendants will
implicate the right to a public trial or constitute a closure if closed to the public."
State v. Sublett, 176 Wn.2d 58, 71, 292 P.3d 715 (2012). To determine whether
the public trial right attaches to a particular proceeding, courts utilize the two-part
"experience and logic" test. Sublett, 176 Wn.2d at 72-75. The "experience"
prong of this test asks "'whether the place and process have historically been
open to the press and general public.'" Sublett, 176 Wn.2d at 73 (quoting Pressz
Enterprise Co. v. Superior Court, 478 U.S. 1, 8, 106 S. Ct. 2735, 92 L Ed. 2d 1
(1986) (Press ID).      "The logic prong asks 'whether public access plays a
 significant positive role in the functioning of the particular process in question.'"
 Sublett, 176 Wn.2d at 73 (quoting Press II, 478 U.S. at 8). Only if both questions
 are answered in the affirmative is the public trial right implicated. Sublett, 176
No. 69593-2-1 / 5


Wn.2d at 73. The defendant has the burden to satisfy the experience and logic

test. In re Yates, 177 Wn.2d 1, 29, 296 P.3d 872 (2013).

      On direct appeal, wrongful deprivation of the right to a public trial is

structural error presumed to be prejudicial to the defendant. Wise, 176 Wn.2d at

13, 16. "That is because such error 'affect[s] the framework within which the trial

proceeds, rather than simply an error in the trial process itself.'" Shearer, 181

Wn.2d at 572 (alteration in original) (internal quotation marks omitted) (quoting

Wise, 176Wn.2d at 13-14).

       On collateral review, however, a meritorious public trial violation is not

presumed prejudicial. In re Pers. Restraint of Coqgin, 182 Wn.2d 115, 119-20,
340 P.3d 810 (2014). Rather, a petitioner claiming a public trial violation for the
first time on collateral review must show actual and substantial prejudice.

Coggin, 182 Wn.2d at 116. The one "exception" to this rule is where petitioners

allege a public trial violation by way of an ineffective assistance of counsel claim.
Coggin, 182 Wn.2d at 119.

       Here, Eagle claims that the trial court violated his right to a public trial
when it arraigned him in chambers on an amended information. We begin our
analysis by examining the relevant procedural history and the particular
proceeding at issue.

       The State originally charged Eagle with two counts of rape of a child in the
second degree. On June 27, 2008, Eagle was arraigned in open court on this
information.

       On February 17, 2009, the State filed the first amended information. The
No. 69593-2-1 / 6


first amended information charged four counts.            It added two counts of first

degree rape of a child and it erroneously increased the former counts of second

degree rape of a child to first degree rape of a child.

       Two days later, the trial court held a hearing on a defense motion to

continue. At the hearing, the State asked the court to arraign Eagle on the first

amended information.      The court declined to do so, noting that the existing

affidavit may not cover probable cause. The court indicated that if probable
cause is found, then the prosecutor should "note it up for arraignment on the

regular arraignment calendar."4 The prosecutor did not do so.
       At pretrial motions on December 1, 2009, Eagle moved to challenge the
first amended information. He argued that, because the State never provided an

amended affidavit of probable cause, it would be extremely prejudicial to allow
the State to amend the charges at that time. He asked the court to refile the

original information. The State conceded error, but it argued that because Eagle
had notice of the amended charges, there was no prejudice. It asked the court to

allow the first amended information and to arraign Eagle at that time.

       During this discussion, the State noticed the errors in the first amended
information. The first amended information erroneously charged four counts of

rape of a child in the first degree. But the State intended for the first amended
information to charge two counts of first degree rape of a child and two counts of
second degree rape of a child.

        The trial court agreed to permit the State to amend the charges but stated

4 Motion to Strike and Response Br. of Resp't, App. E; App. F (Report of Proceedings
 (RP)(Feb. 19, 2009) at 8).
                                           6
No. 69593-2-1 / 7


that it would not arraign Eagle on an erroneous amended information. Because

the State needed time to get the new information—the second amended

information—prepared, the trial court elected to conduct the arraignment on the

second amended information in chambers.           The record reflects the following

sequence of events:

      [Prosecutor]: Your Honor, we need about 15 minutes to get the
      Information prepared.

      [The Court]: We'll have the panel sitting out here ready to go so I
      want you to—maybe we'll meet in chambers with the court reporter
       and I can do the arraignment in chambers.

      [Prosecutor]: Thank you, Your Honor.

                                    (Recess taken.)

                                    (The following proceedings
                                   were had in chambers:)

       [The Court]:     Mr. Eagle, I'm holding what's called a Second
       Amended Information in your case; have you seen a copy of that?

       [Eagle]: Yes.

       [The Court]: You are charged in Count I of the Second Amended
       Information with the crime of rape of a child in the first degree; in
       Count II with the crime of rape of a child in the first degree; in Count
       III with the crime of rape of a child in the second degree; and in
       Count IV with the crime of rape of a child in the second degree. Do
       you want me to read this to you?

       [Defense Counsel]: It's not necessary, Your Honor.

       [The Court]: To those charges how do you plead?

       [Eagle]: Not guilty.

       [The Court]: Not guilty pleas are entered.[5]
       At no time did the trial court ask whether anyone objected to this

5Pers. Restraint Petition and Opening Br., App. B (RP (Dec. 1 &2, 2009) at 39-40).
                                           7
No. 69593-2-1 / 8


procedure.     Nor did the trial court conduct a Bone-Club analysis prior to

conducting the in-chambers arraignment on the second amended information.

       As we stated earlier in this opinion, the first step in analyzing an alleged

violation of the right to a public trial is determining whether the public trial right

attaches to the proceeding at issue.       Love, 183 Wn.2d at 605. And, as our

Supreme Court recently stated, "[W]e must take care to define the proceeding at

issue with precision because our focus is on the proceeding that actually

occurred, not on the general label that might be attached to a variety of related
proceedings." State v. Jones. No. 89321-7, 2016 WL 1594034, at *4 (Wash. Apr.

21,2016).

       The State characterizes the proceeding in this case as an "arraignment on

a non-substantive amendment to the information."6 In doing so, it focuses only

on the differences between the first amended information and the second

amended information. The State further asserts that the right to a public trial is

not implicated by an arraignment on a non-substantive amendment to the
information.

       We disagree with the State that the proceeding that actually occurred in
this case was an arraignment on a non-substantive amendment to the
information. The State's focus—on the differences between the first amended

information and the second amended information—is misplaced. Eagle was

 never arraigned on the first amended information due to the State's failure to
 properly file this information and note it for arraignment. Accordingly, we must
 look at the effect of both the first amended information and the second amended

 6Supp. Response to Pers. Restraint Petition at 5.
                                            8
No. 69593-2-1 / 9


information. The State acknowledged this at oral argument before this court.

       As compared to the original information, the second amended information

reflects substantial changes. Most significantly, the second amended information

added two charges of first degree rape of a child. There can be no serious

dispute that the addition of these two charges was a substantive amendment to

the original information.

       Accordingly, because the actual proceeding in this case was an

arraignment on a substantive amendment to the information, we need not
determine whether an arraignment on a non-substantive amendment to the

information implicates the right to a public trial. Instead, we turn our focus to the
particular issue before us—whether an arraignment on a substantive amendment
to the information implicates the right to a public trial. It does not appear that any
Washington case has addressed whether this type of proceeding implicates the
defendant's public trial right. Therefore, we apply the experience and logic test.
       Under the experience prong, the relevant inquiry is "'whether the place
and process have historically been open to the press and general public.'"
Sublett, 176 Wn.2d at 73 (quoting Press II, 478 U.S. at 8).

       Arraignments have historically been performed in open court.              This
principle is well established.     "[0]ur criminal law tradition insists on public
indictment, public trial, and public imposition of sentence." Smith v. Doe, 538
U.S. 84, 98-99, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003); see ateo 22 C.J.S.
Criminal Law § 483, at 612 (2006) ("The arraignment should be held in open
court, at stated terms, whether regular or adjourned, of which the general public
No. 69593-2-1/10


has been advised." (emphasis added) (footnote and citation omitted)).

       In Washington, the concept of public arraignments is found in case law

dating back more than a century.          In State v. Philip, our Supreme Court

recognized that "a defendant must be arraigned before the court." 44 Wash. 615,

618, 87 P. 955 (1906) (citing Ballinger's Ann. Codes & St. § 6884); see also

State v. Nelson, 39 Wash. 221, 224, 81 P. 721 (1905) ("The order of arraignment

. .. was delivered to the appellant in open court.").

       This principle is also found in court rules and statutes.       The current

Federal Rules of Criminal Procedure expressly state that "[a]n arraignment must

be conducted in open court."         Fed. R. Crim. P. 10(a) (emphasis added).
Similarly, although the current Washington Criminal Rule (CrR) 4.1(a) does not
require that an arraignment occur in open court, former CrR 41(a) (2002)
provided, "'Promptly after the indictment or information has been filed, the
defendant shall be arraigned thereon in open court.'"7         Washington's rule
replaced former RCW 10.40.010,8 which provided, "'When the indictment or
information has been filed by the defendant, if he has been arrested, or as soon

thereafter as he may be, shall be arraigned thereon before the court.'"
       These authorities address arraignments in general and do not address the

particular proceeding in this case—an arraignment on a substantive amendment
to the information. But as our Supreme Court has made clear, "It is well settled
that a substantial amendment of an information requires that the accused be

arraigned on the amended information." State v. Hurd, 5 Wn.2d 308, 312, 105

7 (Emphasis added.)
8Former RCW 10.40.010 (1983) (repealed by Lawsof 1984, ch. 76 § 27).
                                          10
No. 69593-2-1 /11


P.2d 59 (1940). There is nothing to indicate that an arraignment on a substantive

amendment to the information would not implicate these same rules, statutes,

and established principles. For these reasons, we conclude that the experience

prong is satisfied.

       Under the logic prong, the relevant inquiry is "'whether public access plays

a significant positive role in the functioning of the particular process in question.'"

Sublett, 176 Wn.2d at 73 (quoting Press II. 478 U.S. at 8). "In analyzing this

prong, we look to whether openness will advance the purposes of the public trial
right: 'to ensure a fair trial, to remind the prosecutor and judge of their
responsibility to the accused and the importance of their functions, to encourage

witnesses to come forward, and to discourage perjury.'"             Jones, 2016 WL

1594034, at * 6 (quoting Sublett, 176 Wn.2d at 72).

       Here, concerns relating to witnesses and perjury are not implicated.
Rather, the focus is on the purposes of ensuring a fair trial and reminding the
prosecutor and the court of their responsibility to Eagle and the importance of
their functions. As Eagle points out, Washington does not require grand juries in
making charging decisions. Instead, the power to charge by information is
vested in the prosecutor's office.

        Requiring public access to arraignments thus serves as an important
check on the judicial system. The Supreme Court underscored the importance of
this safeguard in Wise:

                A public trial is a core safeguard in our system ofjustice. Be
        it through members of the media, victims, the family or friends of a
        party, or passerby, the public can keep watch over the
        administration of justice when the courtroom is open. The open

                                           11
No. 69593-2-1/12


       and public judicial process helps assure fair trials. It deters perjury
       and other misconduct by participants in a trial. It tempers biases
       and undue partiality. The public nature of trials is a check on the
       judicial system, which the public entrusts to adjudicate and render
       decisions of the highest import. It provides for accountability and
       transparency, assuring that whatever transpires in court will not be
       secret or unscrutinized. And openness allows the public to see,
       firsthand, justice done in its communities.

176Wn.2dat4-6.

       Public access to arraignments subjects the prosecutor to public scrutiny

over charging decisions. Therefore, it serves an important role in ensuring that

the prosecutor exercises his or her power judiciously and without bias. It holds

these public officials accountable and keeps watch over the administration of

justice. Further, there is often intense media and public interest in arraignments.

Requiring public arraignments allows for these interested parties to "see,
firsthand, justice done in [their] communities." Wise, 176 Wn.2d at 6. For these
reasons, we conclude that the logic prong is also satisfied.

       The State argues that the right to a public trial is not implicated because
the "substance of the amendment had already been addressed in open court"

and the reading of the information and Eagle's plea were recorded in the
transcripts.9    But the State fails to explain how this is relevant under the
experience and logic test.      Moreover, the fact remains that the arraignment
proceeding itselfwas not conducted in open court.

        In short, both experience and logic compel the conclusion that an

arraignment on a substantive amendment to the information implicates the right
to a public trial.


 Supp. Response to Pers. Restraint Petition at 7.
                                          12
No. 69593-2-1/13


      The next step in the analysis is to consider whether a closure occurred.

"[T]he appellant must supply a record that reveals that the court took actions

amounting to a closure, such as explicitly issuing an order completely closing the

proceedings or moving the proceedings to chambers." State v. Gomez, 183

Wn.2d 29, 35, 347 P.3d 876 (2015).           Here, the record shows that the court

moved the proceedings to chambers and conducted the arraignment on the

amended information there. A closure occurred.

      The final step is to consider whether the closure was justified. "A closure

unaccompanied by a Bone-Club analysis on the record will almost never be
considered justified." Smith, 181 Wn.2d at 520. When a trial court fails to
conduct a Bone-Club analysis, a reviewing court may examine the record to

determine if the trial court effectively weighed the defendant's public trial right

against other compelling interests. Smith, 181 Wn.2d at 520. Here, the trial
court did not conduct a Bone-Club analysis on the record. Nor does the record

reflect that the trial court effectively weighed Eagle's public trial right against

other compelling interests. The closure was not justified.
       In sum, the experience and logic test indicates that the proceeding that
occurred in this case implicates the public trial right.      Because there was a
closure, and because the closure was not justified, we conclude that the trial
court violated Eagle's right to a public trial.

       The next question is whether Eagle is entitled to collateral relief. As noted
earlier, a meritorious public trial violation is not presumed prejudicial on collateral
review.   Coggin, 182 Wn.2d at 119-120. A petitioner claiming a public trial


                                            13
No. 69593-2-1 /14


violation for the first time on collateral review must show actual and substantial

prejudice. Coggin, 182 Wn.2d at 119-20.

       Eagle fails to meet this burden. He makes no argument about how the in-

chambers arraignment on the amended information caused actual and

substantial prejudice. He instead appears to abandon this claim and rely solely

on his ineffective assistance of counsel claim. Accordingly, we turn our attention

to Eagle's second claim.

                           Ineffective Assistance of Counsel

       Eagle next claims that his appellate counsel was constitutionally
ineffective in failing to raise the previous claim on direct appeal. He contends
that he is entitled to collateral relief in the form of a new trial. We disagree.

       To establish ineffective assistance of appellate counsel, a petitioner must

establish that (1) counsel's performance was deficient and (2) the deficient
performance actually prejudiced the defendant. In re Pers. Restraint of Morris,
176Wn.2d 157, 166, 288 P.3d 1140(2012).

       "'[P]erformance is deficient if it falls below an objective standard of
reasonableness.'"     Morris, 176 Wn.2d at 167 (alteration in original) (internal
quotation marks omitted) (quoting State v. Grier, 171 Wn.2d 17, 33, 246 P.3d
 1260 (2011), cert, denied, 135 S. Ct. 153 (2014)). "This is a high threshold, and
the petitioner 'must overcome a strong presumption that counsel's performance
was reasonable.'" Morris, 176 Wn.2d at 167 (internal quotation marks omitted)
 (quoting Grier, 171 Wn.2d at 33). "One method of overcoming this presumption
 is by proving that counsel's performance was neither a legitimate trial strategy


                                           14
No. 69593-2-1/15


nor a reasonable tactic." Morris, 176 Wn.2d at 167 (citing Grier, 171 Wn.2d at

33-34).

       To establish prejudice, the defendant must show there is a reasonable

probability that, but for the deficient performance, the outcome would have been

different.    State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).

When raising an ineffective assistance of appellate counsel claim, the petitioner

must show a reasonable probability that he would have prevailed on his appeal.

In re Pers. Restraint of Dalluge, 152 Wn.2d 772, 788, 100 P.3d 279 (2004). "A

reasonable probability is a probability sufficient to undermine confidence in the

outcome." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984).

        As stated earlier, "[t]he general rule is when a personal restraint petitioner

alleges a constitutional violation, the petitioner must establish by a
preponderance of the evidence that the constitutional error worked to his actual
and substantial prejudice." Coggin, 182 Wn.2d at 119. However, in Morris, our

Supreme Court "recognized an exception to this general rule and held that [it]
would presume prejudice where petitioners allege a public trial right violation by
way of an ineffective assistance of appellate counsel claim." Coggin, 182 Wn.2d
at 119 (citing Morris, 176 Wn.2d at 166).

          Thus, "[a]n anomaly exists with respect to prevailing in a personal restraint
petition when one encountered an infringement on open trial rights." State v.
Fort, 190 Wn. App. 202, 238, 360 P.3d 820 (2015), review denied, 185 Wn.2d

1011, 368 P.3d 171 (2016). "On the one hand, when the petitioner asserts his or


                                            15
No. 69593-2-1/16


her public trial rights directly, the petitioner must show actual prejudice." Fort.

190 Wn. App. at 238. "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 public trial rights during an appeal, petitioner need not

prove actual prejudice." Fort, 190 Wn. App. at 238.       Instead, courts "presume

prejudice for petitioners who allege a public trial right violation by way of an

ineffective assistance of appellate counsel claim." Coggin, 182 Wn.2d at 122.

       Here, as already discussed, the trial court violated Eagle's right to a public

trial when it arraigned Eagle on the second amended information in chambers.

Despite the State's assertion to the contrary, Eagle's appellate counsel failed to

raise this claim on direct appeal.

       Thus, the first question presented is whether this failure constituted

deficient performance. This question "necessarily requires proving that counsel
should have known to raise the public trial right issue on appeal." Morris, 176

Wn.2d at 167.

       Eagle's direct appeal came before this court in 2011, prior to the Supreme
Court's adoption of the experience and logic test. At that time, the controlling test

was the "adversary proceedings" test, under which public trial rights applied only

in adversary proceedings, including presentation of evidence, suppression
hearings, and jury selection. In re Pet, of Ticeson, 159 Wn. App. 374, 384, 246
P.3d 550 (2011). The right did not attach where the court resolved "'purely
ministerial or legal issues that [did] not require the resolution of disputed facts.'"
Ticeson, 159 Wn. App. at 384 (internal quotation marks omitted) (quoting State v.


                                         16
No. 69593-2-1/17


Koss, 158 Wn. App. 8, 16-17, 241 P.3d 415 (2010)).

       Like in Morris, at the time of Eagle's direct appeal, "appellate counsel had

but to look at [the Supreme Court's] public trial jurisprudence to recognize the

significance of closing a courtroom without first conducting a Bone-Club

analysis." 176 Wn.2d at 167.

       However, in contrast to Morris, it was not clear at the time of Eagle's direct

appeal that this particular proceeding even implicated Bone-Club.         In Morris,

there was an existing opinion at the time of Morris's direct appeal, In re Personal

Restraint of Orange, 152 Wn.2d 795, 807-08, 814, 100 P.3d 291 (2004), that

"clarified, without qualification, both that Bone-Club applied to jury selection and

that closure of voir dire to the public without the requisite analysis was a

presumptively prejudicial error on direct appeal." 176 Wn.2d at 167.

       Here, in contrast, there was no opinion existing at the time of Eagle's

direct appeal that conclusively established that arraignments on substantive

amendments to the information were subject to Bone-Club or that such errors

were presumptively prejudicial on direct appeal. Thus, Eagle has not shown that

counsel should have known to raise this public trial right issue. Eagle's failure to

show deficient performance is fatal to this claim.

       In any event, even if we were to assume that Eagle's appellate counsel

was deficient, Eagle fails to show prejudice from his appellate counsel's failure to

raise this claim on direct appeal.

       Eagle relies on Orange and Morris to argue that he has established

prejudice.



                                         17
No. 69593-2-1/18


       In Orange, the Supreme Court held that the trial court's closure of the

courtroom during voir dire violated Orange's right to a public trial. 152 Wn.2d at

811-12. It also held that appellate counsel was ineffective for failing to raise this

claim on direct appeal. 152 Wn.2d at 814. It reasoned:

              As to the remedy for the violation of Orange's public trial
       right, we granted the defendant in Bone-Club a new trial, stating
       that "[prejudice is presumed where a violation of the public trial
       right occurs." 128 Wn.2d at 261-62 (citing State v. Marsh, 126
       Wash. 142, 146-47, 217 P. 705 (1923); Waller v. rGeorgia, 467
       U.S. 39, 49 n.9, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984)]. Thus,
       had Orange's appellate counsel raised the constitutional violation
       on appeal, the remedy for the presumptively prejudicial error would
       have been, as in Bone-Club, remand for a new trial. Consequently,
       we agree with Orange that the failure of his appellate counsel to
       raise the issue on appeal was both deficient and prejudicial and
       therefore constituted ineffective assistance of counsel. The failure
       to raise the courtroom closure issue 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 direct appeal. The remedy for counsel's failure to
       raise on appeal the violation of Orange's public trial right is remand
       for a new trial.

152 Wn.2d at 814 (some internal citations omitted).

       Similarly, in Morris, the Supreme Court held that appellate counsel's
failure to raise a public trial right violation based on the judge's in-chambers
questioning of 14 potential jurors constituted ineffective assistance of appellate
counsel. It reasoned:

               To establish ineffective assistance of appellate counsel, a
       petitioner must establish (1) counsel's performance was deficient
       and (2) the deficient performance actually prejudiced the defendant.
        Here, there is little question that the second prong of this test is
        met. In Wise and fState v. Paumier, 176Wn.2d 29, 288 P.3d 1126
       (2012),] we clearly state that the trial court's in-chambers
       questioning of potential jurors is structural error. Had Morris's
       appellate counsel raised this issue on direct appeal, Morris would
        have received a new trial.         No clearer prejudice could be

                                          18
No. 69593-2-1/19


      established.


176 Wn.2d at 166 (some internal citations omitted).

       Eagle asserts that, like in Orange and Morris, the violation in this case

would have been presumed prejudicial on direct appeal, and reversal would have

been automatic.      He therefore contends that he has established prejudice to

support his ineffective assistance of appellate counsel claim.

       We disagree. As we read Orange and Morris, those cases do not stand

for the broad proposition that the failure to raise any public trial claim

automatically establishes prejudice to sustain an ineffective assistance of
counsel claim raised in a personal restraint petition. Rather, it is important to

look at the nature of the violation and the corresponding remedy.

       Both Orange and Morris involved a violation of the right to a public trial

during voir dire. It is clear that the remedy for this type of violation is a new trial.
And, in both Orange and Morris, this fact was essential to the court's prejudice
analysis. In concluding that the failure to raise the public trial claim on direct
appeal was prejudicial to the petitioners, the Supreme Court expressly relied on
the fact that the petitioners would have received a new trial. Orange, 152 Wn.2d
at 814; Morris, 176 Wn.2d at 166.

       Neither Orange nor Morris addressed a situation where the remedy on

direct appeal would have been something less than a new trial. On that basis,
Orange and Morris are distinguishable. In the case before us, the public trial
violation would not have resulted in a new trial if it had been raised on direct

appeal.



                                           19
No. 69593-2-1 / 20


       Both federal and Washington courts have held that a new trial is not

always required for a violation of the right to a public trial. In Waller, the United

States Supreme Court held that although the defendant's right to a public trial

was violated when the courtroom was closed for a suppression hearing, the

defendant was not entitled to a new trial as a remedy for the violation. 467 U.S.

at 48-50. Instead, noting that "the remedy should be appropriate to the violation,"

the Court remanded for a new suppression hearing. 467 U.S. at 50.

       Our Supreme Court recognized this principle in Wise. 176 Wn.2d at 19.

Citing Waller, it noted that "[w]here a public trial right violation occurs at a

suppression hearing or some other easily separable part of a trial, remand for a
public hearing may be appropriate." Wise, 176 Wn.2d at 19. Additionally, and
more recently, our Supreme Court reiterated this principle in Nionqe. It stated:
"Where the error involves only the closure of a pretrial proceeding that can be
repeated without any effect on the trial, a lesser remedy may be appropriate."
181 Wn.2d at 554 n.3.

       We applied this principle in State v. Rainev. 180 Wn. App. 830, 843, 327
P.3d 56 (2014). Although we determined that Rainey's public trial rights were
violated during a posttrial hearing on a motion for a new trial, we rejected his
argument that the proper remedy for the violation was reversal of his conviction.
180 Wn. App. at 837, 843. Relying on Waller and Wise, we concluded that,
because the posttrial hearing was separate from the trial itself and the violation
did not taint the original trial, a new trial was not necessary. 180 Wn. App. at
843. We affirmed Rainey's conviction but remanded for a new hearing on his


                                          20
No. 69593-2-1/21


motion for a new trial. 180 Wn. App. at 845.

         Here, like in Rainev, the arraignment proceeding was separate from the

trial itself and did not taint the original trial. Eagle makes no argument to the

contrary. Thus, even if Eagle's appellate counsel had raised this claim on direct

appeal, Eagle would not have been entitled to a new trial. At most, he would

have been entitled to a new, public arraignment proceeding. For this reason, this

case is distinguishable from both Orange and Morris. In contrast to those cases,

Eagle is unable to establish prejudice from his appellate counsel's failure to raise

the claim on direct appeal. Eagle's failure to show prejudice is also fatal to this

claim.

         Finally, we note that the only collateral relief that Eagle seeks is a new

trial. He does not request any lesser relief, such as a new, public arraignment

proceeding. Thus, even if we concluded that Eagle established a successful
ineffective assistance of counsel claim, he fails to show that he is entitled to the

sole relief he requests. See In re Pers. Restraint of Snivelv. 180 Wn.2d 28, 32,
320 P.2d 1107 (2014) (per curiam); see also In re Pet, of Reyes, 184 Wn.2d 340,

348, 358 P.3d 394 (2015).

         We deny the petition.


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WE CONCUR:




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