    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                     No. 65651-1-1
                      Respondent,
                                                     DIVISION ONE

                                                     UNPUBLISHED OPINION
ARMANDO PEREZ,

                      Appellant.                     FILED: June 27, 2016                        <-*




       Per Curiam. Armando Perez filed a personal restraint petition challenging his

2004 convictions of child molestation. Perez contends that the trial court conducted a

portion of jury voir dire in chambers in violation of his right to a public trial, and that

appellate counsel was ineffective in failing to raise that issue on direct appeal. We

agree. Perez is entitled to collateral relief.

       The State charged Armando Perez with three counts of child molestation. The

case proceeded to trial, and prior to voir dire, the court provided prospective jurors with

a questionnaire that provided as follows:

       Some of the questions may call for information of a personal nature that you may
       not want to discuss in public. If you feel that your answer to any questions may
       invade your right to privacy or might be embarrassing to you, you may so indicate
       on the form that you would prefer to discuss your answer in private. The court
       will give you an opportunity to explain your request for confidentiality in a closed
       hearing.^

       The court questioned twelve jurors privately in chambers as a result of the

questionnaire. Both the prosecutor and defense counsel participated in the questioning.

The court excused four of the privately questioned jurors on its own motion based upon



1 In response to Perez's petition, the State supplies the prosecutor's declaration stating her
belief that the questionnaire was requested and prepared by the defense.
No. 65651-1-1/2



the responses. During the trial, the court questioned three additional jurors in chambers

about their exposure to pretrial publicity. The three jurors remained on the jury.

      A jury convicted Perez as charged in 2004. On appeal, Perez's counsel did not

raise a public trial claim. See State v. Perez, No. 55458-1-1, noted at 135 Wn. App.

1012 (2006). In 2007, on remand from the decision on appeal, Perez was resentenced

on two molestation counts and the State dismissed the third count. In October 2008,

after Perez finished serving his sentence, he filed a timely motion under CrR 7.8 to

vacate his judgment and sentence in Skagit County Superior Court.

       On its own motion, the superior court stayed the matter pending resolution of two

public trial rights cases in the Washington Supreme Court: 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).

After the Supreme Court decided Momah and Strode, the superior court lifted the stay,

held a hearing, and transferred the motion to this court for consideration as a personal

restraint petition. See CrR 7.8 (c)(2).

       This court then stayed the petition twice. We first stayed the case pending a

decision by the Supreme Court in In re Pers. Restraint of Morris, 176 Wn.2d 157, 166,

288 P.3d 1140 (2012), and then we again stayed, pending the decisions in In re Pers.

Restraint of Cogqin. 182Wn.2d 115, 340 P.3d 810 (2014) and In re Pers. Restraint of

Speight, 182 Wn.2d 103, 340 P.3d 207 (2014). This court lifted the final stay in

November 2015. The State has provided supplemental briefing addressing the impacts

of Morris, Coggin, and Speight.

       The Sixth Amendment to the United States Constitution and article I, section 22

of the Washington State Constitution guarantee a criminal defendant the right to a
No. 65651-1-1/3



public trial. State v. Wise. 176 Wn.2d 1, 9, 288 P.3d 1113 (2012). Additionally, article I,

section 10 of the Washington Constitution guarantees the public's open access to

judicial proceedings. State v. Easterling. 157 Wn.2d 167, 174, 137 P.3d 825 (2006). To

protect both rights, certain proceedings must be held in open court unless application of

the five-factor test in State v. Bone-Club. 128 Wn.2d 254, 258-59, 906 P.2d 325 (1995)

supports closure of the courtroom.2

       It is well established that the public trial right in voir dire proceedings extends to

the questioning of individual prospective jurors. Wise, 176 Wn.2d at 16-19. The

wrongful deprivation of the public trial right is a structural error presumed to be

prejudicial on direct appeal. Wise, 176 Wn.2d at 14.

       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. Morris, 176 Wn.2d at 166. "[Wjhere 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." Morris,

176Wn.2dat161.


       There is no dispute that the trial court closed the courtroom when it privately

questioned potential jurors during voir dire in chambers without first conducting a Bone-

Club analysis. This was a violation of Perez's constitutional right to a public trial.




2The five factors are: (1) the proponent of closure must make a showing of compelling need, (2)
any person present when the motion is made must be given an opportunity to object, (3) the
means of 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 public and of the
closure, and (5) the order must be no broader in application or duration than necessary. Bone-
Club, 128 Wn.2d at 258-59.
No. 65651-1-1/4



Because this error would have been presumed prejudicial on direct appeal, appellate

counsel was ineffective for failing to raise it.

       Relying on State v. Momah, the State argues that Perez is not entitled to a new

trial despite the closure because he invited the violation. "The basic premise of the

invited error doctrine is that a party who sets up an error at trial cannot claim that very

action as error on appeal and receive a new trial." Coggin, 182 Wn.2d at 119. But in

Momah, the trial court fully and effectively considered the Bone-Club factors on the

record, even if it did not identify them by name. Momah, 167 Wn.2d at 156. Whereas

here, there is nothing to indicate that the trial court recognized the closure issue or

considered any of the underlying factors.

       Instead, this case is more similar to Coggin. In Coggin:

       [d]uring jury selection, defense counsel expressed a desire for individual juror
       questioning due to the publicity and sensitive nature of the case. The prosecutor
       drafted a juror questionnaire, and defense counsel approved the final version.
       The questionnaire advised the potential jurors that if they preferred to discuss
       their answers in private, the court would give them an opportunity to explain their
       answers in a "closed hearing."

Coqgin, 182 Wn.2d at 117. The Washington Supreme Court held that these actions did

not rise to the level of invited error. Coggin, 182 Wn.2d at 119. Therefore, even

assuming that defense counsel drafted the questionnaire, Perez did not invite the error.

       Alternatively, the State maintains that Perez waived his public trial right. But

waiver of a constitutional right must be knowing, voluntary, and intelligent. State v.

Shearer. 181 Wn.2d 564, 571, 334 P.3d 1078 (2014). A court must "indulge every

reasonable presumption against waiver of fundamental rights." State v. Frawlev, 181

Wn.2d 452, 461, 334 P.3d 1022 (2014). Here, the record does not support a conclusion
No. 65651-1-1/5



that Perez waived his public trial right. There is no evidence that Perez was advised of

his right to a public trial or that he consented to the private questioning of the jurors.

       Finally, the State argues that Perez has failed to show that appellate counsel was

constitutionally deficient. At the time of Perez's direct appeal, the Supreme Court had

decided in In re Pers. Restraint of Orange. 152 Wn.2d 795, 100 P.3d 291 (2004). The

State points out, however, that Orange involved the exclusion of the defendant's family

due to courtroom space limitations and there was nothing to suggest that the defendant

in Orange benefitted from the closure. Recognizing this difference, the State suggests

that appellate counsel could have reasonably decided not to raise a public trial issue.

But Morris also involved voir dire in chambers. And despite the factual differences, the

Morris court concluded that Orange "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." Morris, 176 Wn.2d at

167.


       Therefore, Perez's personal restraint petition is granted and his case remanded

to the superior court with orders to vacate his judgment and sentence and conduct any

further necessary proceedings, consistent with this opinion.

                                        For the court:



                                                                    l^vkf^AU

                                                                     )JH>£.iAL^k\ „
