                                                                            FILED 

                                                                         JAN. 20, 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. 31859-1-111
                     Respondent,              )
                                              )
       v.                                     )
                                              )
STEVEN D. OSTER,                              )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )


       KORSMO, J.   - Steven Oster appeals from a jury determination that he committed

two felony violations of a no contact order, arguing that his public trial rights were

violated during the exercise of peremptory challenges. We affirm the convictions, but

remand for the court to strike the term of community custody.

                                          FACTS

       During jury selection, the parties exercised their peremptory challenges by

marking them on a sheet of paper that was passed back and forth between counsel in the

courtroom. There was no objection to the process.
No. 31859-l-III
State v. Oster


       After the jury returned the two guilty verdicts, the trial court imposed a sentence

consisting of concurrent 60 month prison terms followed by 12 months of community

custody. The judgment and sentence carried a notation indicating that the combined term

of incarceration and community custody could not exceed 60 months. Mr. Oster

promptly appealed to this court.

                                          ANALYSIS

       The appeal presents two issues concerning the jury selection process and the term

of community custody. We conclude that Mr. Oster's right to a public trial was not

violated when the parties exercised their peremptory challenges, but that the trial court

erred in imposing the term of community custody. We will address those two matters in

that order.

       Public Trial

       Mr. Oster contends that by silently exercising peremptory challenges on paper, he

was denied his right to a public trial. Several recent cases have rejected this argument.

       Article I, § 22 of the Washington Constitution guarantees a criminal defendant

the right to a "public trial." Article I, § 10 requires that justice "in all cases shall be

administered openly." In a criminal case, these complementary provisions serve the

same function of ensuring that the defendant receives a public trial. State v. Herron,

177 Wn. App. 96, 106,318 P.3d 281 (2013). Courts may only close proceedings after a

proper balancing of competing interests. State v. Bone-Club, 128 Wn.2d 254,258-59,

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No. 31859-1-III
State v. Oster


906 P.2d 325 (1995). The Bone-Club balancing test is applicable to both constitutional

provisions. Id. at 259. The threshold question of whether a particular matter is required

to be heard in open court is determined by using the experience and logic test set out in

State v. Sublett, 176 Wn.2d 58, 292 P.3d 715 (2012).

       The practice of conducting written peremptory challenges has been subject to

several recent public trial challenges. E.g., State v. Love, 176 Wn. App. 911, 914 n.l,

309 P.3d 1209 (2013). Applying the experience and logic test, we determined in Love

that the practice of conducting peremptory challenges at sidebar did not constitute a

closure ofthe courtroom: Id. at 920. Accord, State v. Dunn, 180 Wn. App. 570, 574,

321 P.3d 1283 (2014). Subsequently, this court held that conducting peremptory

challenges "on paper" did not constitute a closure of the courtroom. State v. Webb,

183 Wn. App. 242, 246-47, 333 P.3d 470 (2014).

       On the basis of Love, Dunn, and Webb, we conclude once again that the public

trial right does not preclude the written exercise of peremptory challenges in the

courtroom. There was no violation of Mr. Oster's right to a public trial.




       I  The Washington Supreme Court, after applying the experience and logic test to
sidebar conferences, concluded that sidebar conferences do not violate the public trial
right. State v. Smith, 181 Wn.2d 508,511,333 P.3d 388 (2014) (sidebar conferences on
several issues).

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No. 31859-I-II1
State v. Oster


       Community Custody

       The parties agree that the trial court erred by imposing a term of community custody.

We agree and remand the case with directions to strike the term of community custody.

       A sentence includes periods of total or partial confinement, as well as any term of

community custody imposed by the court. RCW 9.94A.030(8); RCW 9.94A.505(2)(a)(i),

(ii). RCW 9.94A.701(9) provides that the period of community custody "shall be

reduced" when the "standard range term of confinement in combination with the term of

community custody exceeds the statutory maximum for the crime as provided in

RCW 9A.20.021." Felony violation ofa no contact order is a class C felony.

RCW 26.50.110. The maximum sentence for a class C felony is five years.

RCW 9A.20.021(1)(c).

       Because the 60 month sentence of incarceration and the 12 month term of

community custody together exceed the statutory maximum sentence of 60 months, the

trial court erred by adding the term of community custody. The addition of the notation

limiting the total of the two terms to the 60 month period is ineffectual in light of

statutory amendments. See State v. Boyd, 174 Wn.2d 470,472,275 P.3d 321 (2012).2

We therefore remand the matter with directions to strike the term of community custody.



       2 We note that the notation would have been effective if the 60 month term of
incarceration had been an exceptional sentence rather than a standard range sentence. See
In re PRP o/McWilliams, No. 88883-3,2014 WL 7338498 (Wash. Dec. 23, 2014).

                                              4

No. 31859-1-II1
State v. Oster


      Affirmed and remanded.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                                                orsmo, J.

WE CONCUR:




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