      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                                    s     ^g
                                                                                            —     rHc:

IN THE MATTER OF THE
                                                                                            "ZO   O-r,
PERSONAL RESTRAINT PETITION                           DIVISION ONE                                T\ ' -J":

OF:
                                                      No. 71367-1-1                         x» «>Sg
JAMES CURTIS ROWLEY,
                                                      UNPUBLISHED OPINION
                                                                                         en       32
                      Petitioner.
                                                      FILED: March 10,2014

       Dwyer, J. — James Rowley filed this personal restraint petition

challenging his restraint pursuant to his 2008 conviction for child molestation in
the first degree.1 Rowley asserts that the attorney who represented him during
the direct appeal of his conviction provided him with constitutionally ineffective
assistance because the attorney did not assign error to the incomplete court

closure analysis employed by the trial court prior to questioning jurors in
chambers. Rowley's position is meritorious; he is entitled to collateral relief.
                                              I


       In 2008, Rowley was convicted of child molestation in the first degree. As
his trial began, prior to jury selection, the trial court stated that "my preference as
you all know is to allow the jurors to come back individually into chambers." The
trial court recognized that there was "a Division Three case that deals with that

       1Aperson is guilty ofchild molestation in the first degree when the person has, or
       knowingly causes another person under the age ofeighteen to have, sexual contact
       with another who is less than twelve years old and not married to the perpetratorand
       the perpetrator is at least thirty-six months older than the victim.
RCW9A.44.083(1).
No. 71367-1-1/2



issue,"2 and asked defense counsel if he had any objection to the procedure.

Defense counsel stated that he had no objection. In this proceeding, defense

counsel certified that because the procedure "was a common practice," he "did

not consider that private questioning might implicate the right to an open and

public trial." Thus, defense counsel never advised Rowley that private

questioning of jurors implicated his right to a public trial.

       Voir dire commenced on May 30, 2008. The trial court informed the jurors

that "it may be available to you to say could we take this question up in the

privacy of chambers." The trial court then asked those members of the public

present in the courtroom if any of them "object to that procedure being utilized in

this jury selection process today?" No one objected. Ultimately, the trial court

questioned seventeen jurors in chambers. The prosecutor, defense counsel, a

court reporter, Rowley, and the trial judge were all present in chambers during

questioning. Eleven of the seventeen jurors privately questioned were dismissed

for cause.

       The jury found Rowley guilty of child molestation in the first degree. The

trial court entered judgment and sentenced Rowley on July 14, 2008. The trial

court found that Rowley was a persistent offender and sentenced him to life in

prison without the possibility of early release.3

        Rowley appealed, and Division Two affirmed the judgment and sentence.

       2This was an apparent reference to State v. Duckett, 141 Wn. App. 797, 173 P.3d 948
(2007), review denied. 176 Wn.2d 1031 (2013).
        3"Notwithstanding the statutory maximum sentence or any other provision of this chapter,
a persistent offender shall be sentenced to a term of total confinement for life without the
possibility of release." RCW 9.94A.570.

                                             -2-
No. 71367-1-1/3



The Division Two mandate issued on November 5, 2009. On November 2, 2010,

Rowley filed this personal restraint petition challenging his restraint resulting from

the conviction and sentence. The petition was stayed pending the Supreme

Court's resolution of 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). After the stay was lifted,

Division Two transferred the case to us.

                                                 II


        Rowley contends that he is entitled to relief from restraint and a new trial

because his appellate counsel was ineffective for failing to raise the public trial

issue on direct appeal. Case law establishes the merit of his assertion.

                                                 A


        "To prevail on a claim of ineffective assistance of appellate counsel, [a

petitioner] must demonstrate the merit of any legal issue appellate counsel raised

inadequately or failed to raise and also show [that he] was prejudiced." In re

Pers. Restraint of Netherton, 177 Wn.2d 798, 801, 306 P.3d 918 (2013) (citing In

re Pers. Restraint of Lord, 123 Wn.2d 296, 314, 868 P.2d 835, 870 P.2d 964

(1994)).

        Both the federal and state constitutions guarantee to criminal defendants

the right to a public trial.4 U.S. Const, amend. VI; Wash. Const, art. I, § 22. The



        4"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 ofthe county in which the offense ischarged to have been committed."
Wash. Const, art. I, § 22.
No. 71367-1-1/4



Washington Constitution also guarantees the right of an open trial to the public.5

Wash. Const, art. I, § 10. This right extends to voir dire. Paumier, 176 Wn.2d at

34.


        However, the public trial right is not absolute. Paumier, 176 Wn.2d at 34-

35. The trial court may close the court so long as it considers and correctly

applies the five factors outlined in State v. Bone-Club. 128 Wn.2d 254, 906 P.2d

325 (1995). Those five factors are:

                "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 258-59 (alteration in original) (quoting Allied Daily

Newspapers v. Eikenberrv, 121 Wn.2d 205, 210-11, 848 P.2d 1258 (1993)). The

trial court must "resist a closure motion except under the most unusual

circumstances." Bone-Club, 128 Wn.2d at 259.

        Our Supreme Court has declared that privately "questioning potential

jurors is a courtroom closure requiring a Bone-Club analysis. Failure to conduct


        5"Justice in all cases shall be administered openly, and without unnecessary delay.'
Wash. Const, art. I, § 10.

                                              -4-
No. 71367-1-1/5



the Bone-Club analysis is structural error warranting a new trial because voir dire

is an inseparable part of trial." Paumier, 176 Wn.2d at 35 (citing Wise, 176

Wn.2d at 11-12, 15): accord In re Pers. Restraint of Morris, 176Wn.2d 157, 166,

288P.3d 1140(2012); State v. Strode, 167 Wn.2d 222, 228, 230-31, 217 P.3d

310 (2009); State v. Briqhtman, 155 Wn.2d 506, 515-16, 122 P.3d 150 (2005); ]n
re Pers. Restraint of Orange, 152 Wn.2d 795, 804-05, 100 P.3d 291 (2004).

       Here, the trial court did not conduct a complete closure analysis. The trial

judge partially complied with the Bone-Club directive by (1) recognizing the
closure issue; (2) asking the prosecutor and defense counsel if they had any
objection; and (3) asking those members of the public who were in the courtroom
whether any of them objected. However, the trial judge did not consider whether
a compelling interest demanded closure, did not consider whether questioning
jurors in chambers was the least restrictive closure possible, and did not weigh
the competing interests of Rowley and the public.6 The trial court erred by failing
to address these factors. This constituted structural error. Paumier, 176 Wn.2d

at 35; Wise, 176 Wn.2d at 12-13.

       Waiver principles do not apply. "To establish waiver in the public trial
context, the record must show either that the defendant gave a personal
statement expressly agreeing to the waiver or that the trial judge or defense
counsel discussed the issue with the defendant prior to defense counsel's

waiver." State v. Appleqate, 163 Wn. App. 460, 470, 259 P.3d 311 (2011),

        6To the contrary, the trial court began by stating that it was his preference to question
jurors individually in chambers. This was contrary to the directive that the court must "resist a
closure motion except under the most unusual circumstances." Bone-Club, 128 Wn.2d at 259.
No. 71367-1-1/6



review granted, 176 Wn.2d 1032, 299 P.3d 19 (2013). The record here

demonstrates neither. Rowley's counsel assented to the private questioning of

jurors, but Rowley never personally expressed such consent. The record does

not indicate that Rowley was ever advised of his right to a public trial, and

Rowley, in this proceeding, certifies that the judge, prosecutor, and his attorney

never advised him of this right. Rowley's trial counsel also certifies (in this

proceeding) that he did not explain to his client "that private questioning

implicated his right to an open and public trial." "[A] defendant must have

knowledge of a right to waive it." Morris, 176 Wn.2d at 167.7 In this proceeding,

Rowley submits that "If my rights had been explained to me and if I had been

asked, I would not have waived my right to an open and public trial." Because

Rowley had no knowledge of his right to a public trial, he cannot be held to have

waived that right.

        Thus, the public trial issue that appellate counsel failed to raise had merit.

                                                  B


        In order to prevail on a claim of ineffective assistance of counsel, a

petitioner must meet the standards articulated by the United States Supreme
Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d

674(1984).

        Strickland recognized that the Sixth Amendment's guarantee that
        "[i]n all criminal prosecutions, the accused shall enjoy the right. . .
        to have the Assistance of Counsel for his defence" entails that
        defendants are entitled to be represented by an attorney who

        7In Morris, four justices joined the lead opinion. Justice Chambers concurred in the
majority's analysis and result, creating a majority view on the issues pertinent to this petition.
No. 71367-1-1/7



       meets at least a minimal standard of competence, id., at 685-687.
       "Under Strickland, we first determine whether counsel's
       representation 'fell below an objective standard of reasonableness.'
       Then we ask whether 'there is a reasonable probability that, but for
       counsel's unprofessional errors, the result of the proceeding would
       have been different.'" Padilla v. Kentucky. 559 U.S. 356, 366
       (2010) (quoting Strickland, supra, at 688, 694).

Hinton v. Alabama. 571 U.S.        , slip op. No. 13-6440 at *9-10 (2014)

(alterations in original); accord State v. Hendrickson. 129 Wn.2d 61, 77-78, 917

P.2d 563 (1996).

       The United States Supreme Court recently characterized the first step of

this test as follows:

       "The first prong—constitutional deficiency—is necessarily linked to
       the practice and expectations of the legal community: 'The proper
       measure of attorney performance remains simply reasonableness
       under prevailing professional norms.'" Padilla. supra, at 366
       (quoting Strickland, supra, at 688). "In any case presenting an
       ineffectiveness claim, the performance inquiry must be whether
       counsel's assistance was reasonable considering all the
       circumstances." Strickland, supra, at 688.

Hinton. slip op. No. 13-6440 at *10.

       Actions taken by defense counsel that lead to an unfavorable result are

not necessarily constitutionally deficient:

       Under Strickland, "strategic choices made after thorough
       investigation of law and facts relevant to plausible options are
       virtually unchallengeable; and strategic choices made after less
       than complete investigation are reasonable precisely to the extent
       that reasonable professional judgments support the limitations on
       investigation. In other words, counsel has a duty to make
       reasonable investigations or to make a reasonable decision that
       makes particular investigations unnecessary." 466 U.S. at 690-
        691.


Hinton. slip op. No. 13-6440 at *11.
No. 71367-1-1/8



       In Morris. 176 Wn.2d 157, our Supreme Court applied the Strickland test

to a personal restraint petitioner's ineffective assistance of appellate counsel

claim premised upon the failure to raise a public trial issue on direct appeal. In

that case, the trial court announced that some prospective jurors would be

interviewed privately, but did not first consider any of the Bone-Club factors, nor

did it discuss or acknowledge Morris's public trial rights. Morris. 176 Wn.2d at

161-62. At the time, "[n]either the State nor counsel for Morris moved for the

private voir dire and neither objected to conducting the proceedings in

chambers." Morris. 176 Wn.2d at 162. Morris was convicted of two counts of

first degree sexual molestation and one count of first degree rape. Morris. 176

Wn.2d at 161. Morris appealed, but appellate counsel did not raise the public

trial issue. Morris. 176 Wn.2d at 164.

       "An attorney's ignorance of a point of law that is fundamental to his case

combined with his failure to perform basic research on that point is a

quintessential example of unreasonable performance under Strickland." Hinton.

Slip Op. No. 13-6440 at *11. Morris's appellate counsel "should have known to

raise the public trial right issue on appeal." Morris. 176 Wn.2d at 167. This was

so because "Morris's appellate counsel had but to look at this court's public trial

jurisprudence to recognize the significance of closing a courtroom without first
conducting a Bone-Club analysis." Morris. 176 Wn.2d at 167. Because Morris's

appellate counsel ignored law fundamental to his appeal, the court held that
appellate counsel's performance was deficient. Morris. 176Wn.2d at 167.
       Appellate counsel's performance during Rowley's direct appeal was

                                         -8-
No. 71367-1-1/9



similarly deficient. Rowley appealed his conviction in 2008. By the time his

direct appeal was decided in June 2009, the following cases had been published

deeming the procedural failure by the trial court to be a violation of the public trial

right: Brightman. 155 Wn.2d 506; Orange. 152 Wn.2d 795; State v. Heath. 150

Wn. App. 121. 206 P.3d 712 (2009): State v. Sadler. 147 Wn. App. 97, 193P.3d

1108 (2008). review denied. 176Wn.2d 1032 (2013). overruled in part sub nom

bv State v. Sublett. 176 Wn.2d 58. 292 P.3d 715 (2012): State v. Erickson. 146

Wn. App. 200, 189 P.3d 245 (2008), review denied. 176 Wn.2d 1031 (2013);

State v. Momah. 141 Wn. App. 705, 171 P.3d 1064 (2007), affd, 167 Wn.2d 140,

217 P.3d 321 (2009); State v. Duckett. 141 Wn. App. 797, 173 P.3d 948 (2007),

review denied. 176 Wn.2d 1031 (2013); State v. Frawley. 140 Wn. App. 713, 167

P.3d 593 (2007), review granted. 176 Wn.2d 1030, 299 P.3d 19 (2013).

Appellate counsel needed only to have studied a few of these cases to have

known to raise the public trial issue. Counsel's failure to do so constituted

deficient performance.

       Once a petitioner has shown deficient performance he "must also 'show

that there is a reasonable probability that, but for counsel's unprofessional errors,

the result of the proceeding would have been different. A reasonable probability

is a probability sufficient to undermine confidence in the outcome.'" Hinton. slip
op. No. 13-6440 at *12 (quoting Strickland. 466 U.S. at 694). In Morris, our
Supreme Court held that the petitioner established prejudice because the result
of his direct appeal would certainly have been different had his appellate counsel
raised the public trial issue. Specifically, "[i]n Wise and Paumier. we clearly state

                                          -9-
No. 71367-1-1/10



that a 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." Morris. 176 Wn.2d at 166.

       Similarly, here, Rowley would have received a new trial had his appellate

counsel raised the public trial issue. Although the trial court recognized the

public trial issue and conducted a partial closure analysis, it did not fully comply

with the Bone-Club requirements. Wise condemns this error as a structural one.

Had this error been raised on appeal, Rowley would have necessarily received a

new trial. See Wise. 176 Wn.2d at 19. Because he would have received a new

trial, Rowley was prejudiced by his appellate counsel's failure to raise the public

trial issue on direct appeal.

       Here, as in Morris, "where appellate counsel fails to raise a public trial

right claim, where prejudice would have been presumed on direct review, a

petitioner is entitled to relief on collateral review." 176 Wn.2d at 161. Therefore,

Rowley's personal restraint petition is granted and his case remanded to the

superior court with orders to vacate Rowley's conviction and conduct any further

necessary proceedings, consistent with this opinion.

       The petition is granted.



We concur:




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