                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                           January 9, 2018
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                                 No. 49764-6-II

                                Respondent,

         v.

 CHAD ERNEST CHRISTENSEN,                                      UNPUBLISHED OPINION

                                Appellant.

       WORSWICK, J. — Chad Ernest Christensen appeals from the trial court’s denial of his CrR

7.8(b)(5) motion for relief from the judgment and sentence imposed following his conviction of

first degree child molestation. Christensen’s court-appointed attorney has filed a motion to

withdraw on the ground that there is no basis for a good faith argument on review. We grant the

motion to withdraw and dismiss the appeal.

                                              FACTS

       In 2012, Christensen was convicted of first degree child molestation following a jury

trial. We affirmed Christensen’s conviction on direct appeal. State v. Christensen, noted at 181

Wn. App. 1002 (2014) (unpublished).

       In 2015, Christensen filed a CrR 7.8(b)(5) motion for relief from his judgment and

sentence. Christensen argued in his motion that (1) his public trial right was violated when either

the bailiff or trial counsel asked Christensen’s father, Chip Christensen, to give up his seat in the

courtroom to make room for potential jurors, and (2) defense counsel was ineffective for failing
No. 49764-6-II


to object to the courtroom closure. Christensen attached to his CrR 7.8 motion a sworn

declaration from his father, which stated in relevant part:

       (4)    Just prior to the venire entering the courtroom the prosecutor informed the
              court that “There was a larger than normal venire and there wouldn’t be
              enough room for everyone.” I was then asked to leave. I thought that was
              normal procedure, so I left the courtroom.
       ....

       (6)    I did however remain in the courthouse to be able to go back into the
              courtroom once seats became available.
       ....

       (8)    After selection of the jurors was completed the court went to lunch. It was
              not until after they returned from lunch was I allowed to re-enter the
              courtroom. I was excluded for the entire duration of the jury selection.

Clerk’s Papers (CP) at 104-05.

       The trial court conducted an evidentiary hearing and took testimony regarding the alleged

closure. Following the hearing, the trial court dismissed Christensen’s CrR 7.8(b)(5) motion and

later entered its findings of fact and conclusions of law, which stated in relevant part:

                                      FINDINGS OF FACT

       1.4.    Christensen and Chip Christensen entered the courtroom together the
               morning of day one of Christensen’s jury trial through the unlocked public
               hallway entrance to the courtroom.

       1.5.    The standard protocol for opening up the courtroom to the public is for the
               courtroom clerk to enter through the nonpublic entrance, turn on the back
               lights, walk to the public entrance, open the doors, and using the key unlock
               both doors for the public entrance.

       1.6.    The only way to lock the doors from the public hallway to the entrance of
               the courtroom is for a person to manually lock the doors from the outside
               with a key.

       1.7.    The courtroom clerk, judge and court administrator have keys to the
               courtrooms.



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No. 49764-6-II


       1.8.    For the unlocked public entrance doors of the courtroom to become locked
               while court was in session, it would require a person to go outside the
               courtroom, and physically lock the courtroom doors.
       ....

       1.11.   Chip Christensen was asked to move from his seat in the first pew, directly
               behind the defense table, in order to accommodate the seating of the 51
               prospective jurors.

       1.12.   Chip Christensen was not asked to leave the courtroom.

       ....

                                  CONCLUSIONS OF LAW

               Based on these findings the court draws the following conclusions:

       2.2. Christensen has not met his burden to show, by competent evidence, that there
            was in fact a courtroom closure.
       ....

CP at 344-45. Christensen appeals from the order denying his CrR 7.8 motion.

                                          ANALYSIS

       RAP 15.2(i) provides that court-appointed counsel should file a motion to withdraw “[i]f

counsel can find no basis for a good faith argument on review.” Pursuant to Anders v.

California, 386 U.S. 738, 744, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v. Theobald, 78

Wn.2d 184, 185, 470 P.2d 188 (1970), counsel’s motion to withdraw must

       “be accompanied by a brief referring to anything in the record that might arguably
       support the appeal. A copy of counsel’s brief should be furnished the indigent and
       time allowed him to raise any points that he chooses; the court—not counsel—
       then proceeds, after a full examination of all the proceedings, to decide whether
       the case is wholly frivolous.”

State v. Hairston, 133 Wn.2d 534, 538, 946 P.2d 397 (1997) (alteration in original) (quoting

Anders, 386 U.S. at 744). This procedure has been followed. Christensen’s counsel on appeal




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No. 49764-6-II


filed a brief with the withdrawal motion. Christensen was served with a copy of the brief and

informed of his right to file a statement of additional grounds for review.

       The material facts are accurately set forth in counsel’s brief in support of the motion to

withdraw. We have reviewed the briefs filed in this court and have independently reviewed the

entire record. We specifically considered the following potential issues raised by counsel:

       1.    [Whether a]ppellant was denied his constitutional right to a public trial
       because, during voir dire, appellant’s father was asked to give up his seat in favor
       of potential jurors.

       2.    [Whether a]ppellant was denied his constitutional right to effective assistance
       of counsel because his attorney failed to object to a closure of the courtroom during
       voir dire.

       3.   [Whether a]ppellant was denied his constitutional right to effective assistance
       of appellate counsel because his attorney on appeal failed to assign error or argue a
       denial of appellant’s public trial right.

Motion to Withdraw at 3.

       We generally review a trial court’s denial of a CrR 7.8 motion to vacate a conviction for

an abuse of discretion. State v. Scott, 150 Wn. App. 281, 290, 207 P.3d 495 (2009). Where a

trial court weighs evidence following a CrR 7.8 hearing, we review its findings of fact for

substantial evidence and its conclusions of law de novo. State v. Schwab, 141 Wn. App. 85, 91,

167 P.3d 1225 (2007). Upon our independent review of the record, we conclude that substantial

evidence supports each of the trial court’s findings of fact.

       Regarding the first potential issue raised by counsel, there is no good faith argument that

the trial court erred by concluding Christensen failed to show that a courtroom closure had

occurred. To succeed in his public trial violation claim, Christensen carried the burden of

showing that a courtroom closure had occurred. State v. Love, 183 Wn.2d 598, 605, 354 P.3d



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No. 49764-6-II


841 (2015), cert. denied, 136 S. Ct. 1524 (2016). “A closure . . . occurs when the public is

excluded from particular proceedings within a courtroom.” State v. Anderson, 187 Wn. App.

706, 712, 350 P.3d 255 (citing State v. Gomez, 183 Wn.2d 29, 33-34, 347 P.3d 876 (2015); State

v. Lormor, 172 Wn.2d 85, 92, 257 P.3d 624 (2011)), remanded, 184 Wn.2d 1009 (2015). Here,

the trial court’s factual findings that Christensen’s father was asked to give up his seat but not to

leave the courtroom, together with its findings regarding the process and procedures for locking

the courtroom’s publicly accessible doors, clearly support the conclusion that no courtroom

closure had occurred. Accordingly, there is no good faith argument that the trial court erred by

concluding that a courtroom closure did not occur during Christensen’s trial.

       Regarding the second potential issue raised by counsel, there is no good faith argument

that the trial court erred by concluding Christensen’s trial counsel was not deficient for failing to

object to a courtroom closure. To demonstrate ineffective assistance of counsel, Christensen

must show both deficient performance and resulting prejudice. State v. Reichenbach, 153 Wn.2d

126, 130, 101 P.3d 80 (2004). To show deficient performance, Christensen must show that

defense counsel’s performance fell below an objective standard of reasonableness. Reichenbach,

153 Wn.2d at 130. Here, Christensen cannot show that his defense counsel performed

deficiently for failing to object to a courtroom closure because no courtroom closure had

occurred. Accordingly, there is no good faith argument that the trial court erred by concluding

Christensen’s trial counsel did not perform deficiently.

       Finally, regarding the third potential issue raise by counsel, there is no good faith

argument that appellate counsel was ineffective for failing to raise a public trial violation on

direct appeal. First, Christensen did not raise an ineffective assistance of appellate counsel claim



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No. 49764-6-II


in his CrR 7.8 motion. Accordingly, there is no ruling on that issue for us to review. Second,

even assuming that the issue could be raised in this appeal, there is nothing in the direct appeal

record that would have alerted appellate counsel to a potential public trial right violation claim.

Moreover, as addressed above, there was no courtroom closure and, thus, appellate counsel could

not have performed deficiently for failing to raise a public trial violation claim.

        Based on the above, the potential issues raised by counsel are wholly frivolous. And our

independent review of the record does not reveal any potential nonfrivolous issues that may be

raised in this appeal. Accordingly, we grant counsel’s motion to withdraw and dismiss

Christensen’s appeal.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                                       Worswick, J.
 We concur:



 Bjorgen, C.J.




 Melnick, J.




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