                                                                                                  r
                                                                                                      2, 0F APPEALS
                                                                                                       1_

                                                                                                 2010 DEC   7             la
                                                                                                 STAI           SHI?4GT

                                                                                                 BY




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                     DIVISION II

                                                                                 No. 37217 -7 -II
In re Personal Restraint Petition of


         FELIX JOSEPH D' ALLESANDRO


                                                                              PUBLISHED OPINION




          HUNT, J. -            In this   personal   restraint   petition (   PRP),   Felix   Joseph D' Allesandro


challenges his 2004 jury trial conviction for first degree premeditated murder with a deadly

weapon.     He argues that his previous appellate counsel rendered ineffective assistance in failing

to include a Bone -Club' challenge to the temporary courtroom closure during jury selection in
                                                         2
the   petition   for   review   from his direct   appeal .   Agreeing, we grant this PRP.




    State v. Bone -Club, 128 Wn.2d 254, 906 P.2d 325 ( 1995).

2
  D' Allesandro also argues that ( 1) his trial counsel rendered ineffective assistance by failing to
move for curative instructions or a mistrial after his ( D' Allesandro' s) co- defendant' s attorney
repeatedly questioned D' Allesandro about other witnesses' credibility and engaged in incomplete
impeachment; and ( 2) the trial court violated his constitutional public trial right when, without
first applying the Bone -Club factors, ( a)
                                          it temporarily closed the courtroom during jury selection
to questiori privately approximately one -third of the jury pool, and ( b) it closed the courtroom to
question a
            sitting juror about his possibly knowing a witness. Because we find the ineffective
assistance of former appellate counsel argument dispositive, we do not address most of these
other arguments.
No. 37217 -7 -II



                                                                 FACTS


          The State charged Felix Joseph D' Allesandro and Mert Celebisoy with first degree

murder while armed with a deadly weapon for the stabbing death of David George. 3 State v.
Celebisoy, noted at 131 Wn. App. 1003, 2006 WL 14519, at * 2, review denied, 158 Wn.2d 1004

 2006). Their high            profile cases were consolidated             for.trial in March 2004.          Celebisoy, 2006 WL

14519,    at *   3.   The jury convicted both defendants as charged.

                              I. CLOSED COURTROOM DURING INITIAL JURY VOIR DIRE


          Before voir dire began, D' Allesandro' s counsel apparently proposed and prepared a juror

questionnaire, which asked jurors to indicate whether they wished to be interviewed privately

about    any     of   the   questions.    The trial court' s instruction sheet accompanying this questionnaire

stated: "   Further questioning, if any,             will   be     conducted   privately if         you request   it. That is, the

                                                                           4
public and other potential           jurors     will not    be   present. "    State'   s   Third Suppl.     Resp., App. B at 3.

D' Allesandro subsequently asked the trial court about interviewing prospective jurors who had

stated on      their juror      questionnaires       that   they   preferred   to be    examined "        privately," as both the


questionnaires and            the trial   court' s   accompanying instruction               sheet   had   promised.   1 Verbatim


Report    of   Proceedings ( VRP) ( Mar. 8, 2004) at 2 -3.


          D' Allesandro' s counsel stated:




3 The facts are set forth in our unpublished decision in D' Allesandro' s 2006 direct appeal. State
v. Celebisoy, noted at 131 Wn. App. 1003, 2006 WL 14519, at * 2, review denied, 158 Wn.2d

1004 ( 2006).

4
    Other than the title " the       court' s   instructions," the record does not show who proposed the
instruction sheet or whether it was the trial court' s standard cover sheet. Nor does the record
show that the trial court and counsel discussed private voir dire or D' Allesandro' s public trial
rights before his counsel submitted the questionnaire.



                                                                     0)
No. 37217 -7 -II




       It   occurred   to   me ...        after I had an opportunity to review the jury questionnaires,
       it would make sense for the parties and the Court to interview prospective jurors
       who wished to speak with us privately, to do those interviews prior to voir dire,
       and my rationale is that if those interviews result in any excuses for cause, it
       would diminish the pool right off the bat, and secondly and perhaps more
       importantly from my perspective we don' t run the risk of tainting the remaining
       pool,if we do it on the front end as opposed to doing it on the back end. And I
       know there       are    a   lot    of people   in the — on this side of the bar in the well, and
       normally, at least in my experience, those interviews are conducted in chambers,
       and I would suggest that those interviews take place in an empty courtroom. By

       that, I mean apartfrom the remaining prospective jurors.

1 VRP ( Mar. 8, 2004)        at    2 ( emphasis   added).      Celebisoy, the State, and the trial court agreed that

speaking to those jurors             whose     questionnaires       had   requested "   private"    questioning, before

beginning    the   general voir      dire,   would    be the   most efficient approach.       I VRP   at    3.   Celebisoy' s

counsel    also commented          that it   might    lessen the    chance " of   tainting   the larger [   jury]   pool."   1


VRP (Mar. 8, 2004) at 3.


          The trial court responded:


                   Well, all of the attorneys are in agreement, and I don' t find myself in
          disagreement, but I        maybe would         like to    make a   further   suggestion.    The jurors

          have been waiting a long time so I would like to invite them in and tell them
          something about how this process is working, and then it occurs to me that in
          addition to those who we' ve flagged as — on the basis that they wanted to be asked

          certain questions in private instead of in public, private meaning in the presence
          of the   attorneys,       the    defendants,    the   clerk, so    on —it    doesn' t mean absolute
          privacy, but it     means outside       of what' s    open   to the   general public —and         that' s a

       procedure we generally affordjurors out ofrespectfor their privacy. They' re not
       the ones on trial here, and sometimes there are personal and embarrassing matters
          that they want to properly disclose, but shouldn' t be made to do so in the glare of
          the whole community necessarily.
                 But that in addition to those that have answered " yes" to the question that
          they need to answer certain questions in private, there are some others who' ve
          indicated they know something about this case from the media, and it seems it
          might be prudent to talk to some of those individuals in private so that the
          questions they answer don' t educate the other jurors who profess to not know
          anything about this in the media and that maybe we should expand that group to
          include those individuals and ask them media- related questions at the same time,




                                                                3
No. 37217 -7 -II



       and then there might be some of those who have to be excused for cause and
       others who don' t, but then that would give us a pool of jurors from which to pick
       which is more like those with which we are usually faced.

1 VRP ( Mar. 8, 2004)             at   4 -5 (   emphasis      added).    The State and D' Allesandro agreed that this,


approach was "      fine"      with    them.'    1 VRP ( Mar. 8, 2004) at 5.


       The trial court then discussed the logistics:


                    So you can be thinking about [ identifying those who have had some media
       contact          and   think    need                depth interviews], and I think I' ll invite [ the
                                                further in -
       entire venire] in, make some preliminary remarks as is usually the case, and then
       explain that we' re going to question those jurors who wanted to be questioned
       privately first.
                    Would       you     find    out   if my   regular courtroom    is    available     for that? Or we
       could even clear this courtroom I suppose for that.
             I' m thinking maybe what we' ll do is maybe close this courtroom
       temporarily. I mean the trial' s going to be open to the public, but for these in
       camera           interviews,     maybe we'       ll just   ask members   of the   public   to   leave. Then we
       don' t have to upset the counsel table, the court reporter and everybody else, and
       then open the door again to whoever wants to attend once we' re not talking
       privately with a particular juror. I think that might be a way to do that.
                    I    see    there'    s   some     observers     here, which are welcome to be here
       throughout the trial, but what we' re talking about is how do we pick everybody
        else   up       and move       them     into the judge'      s chambers?      There' s quite a few people
       here to      even       fit into   a   judge'   s chambers plus a     juror.     Our chambers are not that
        large so I think that' s the common -sense way to do this.
                    All right. So anything else before we invite the venire to come in?

1 VRP ( Mar. 8, 2004) at 7 -8. The State commented that it had nothing further; neither defendant




  The State then asked the trial court whether it was going to question individually those potential
jurors who had said they knew about the case, even if they had no recollection of any of the
 details. The trial court replied that it would not question every potential juror who had heard
about the case. The court then directed counsel to
        indicate for [the court] out of those who have had some media contact, those they
        think need further in -
                              depth interviews so questions can be asked that don' t
        necessarily educate the balance of the jury about what was reported, especially in
        the most recent article yesterday which was quite revealing.
1 VRP (Mar. 8, 2004) at 6 -7.



                                                                     0
No. 37217 - -II
          7



responded or objected.



         The trial court then invited the venire into the courtroom and announced:


         Because there are so many of you and because there was a special questionnaire
         we couldn' t use the usual process that is ordinarily used, so what you' ve begun to
           go through, and what you' ll go through for the balance of the day, I want you to
         know is not how we ordinarily do things in Thurston County Superior Court, and
         the reason that this case is different is because instead of the 35 jurors we usually
         have,     we      have     over   90 jurors,    and not   every        case   has   a questionnaire.            This case
           does. One of the things on this questionnaire asked if certain people want to be
           asked certain questions outside the view of the community, which we generally
           allow for jurors' privacy, and all of those things take time.

                       We' re going to do the           voir   dire in this      courtroom      because      of    its   size.   It' s
           the   ceremonial courtroom and                it' s the largest   courtroom        in the   building.         Once we

           get down to the actual jury, which will be 14 jurors, we' ll move up to courtroom
           208, which is department five where I usually sit as the judge in that courtroom.
           The way we' re going to proceed is I' m going to give you some introductory
           remarks         continuing        on   what     I' m   saying     now,       introduce you to the major
           participants, give you your oath as                 jurors,   and     then —I think it makes more sense
           and    is   a   better   use of everyone' s       time —begin          the questioning of the jurors who
          either have asked to be questioned about certain things in private plus certain
         jurors that the attorneys have selected to ask certain questions in private and see —
           of    those     who are questioned        privately —how many                of   those   leave   us.     Then we' ll

           come back with the remaining venire and handle it in a more regular way.

1 VRP ( Mar. 8, 2004) at 8, 9, 10.


           The trial court identified 18 prospective jurors by number as " jurors who indicated they

had individual         questions."         1 VRP ( Mar. 8, 2004)           at   22.    Each defense counsel selected at least


one of     these   jurors for the initial         private    interviews.        The trial court then told the remaining jury

pool, "[   A] 11 those       except    the   ones   that   were named, you' re excused"                for the       next    two hours.   1


VRP ( Mar. 8, 2004) at 24.


           After the venire left the courtroom, the trial court commented that ordinarily it would

take each juror into chambers with the clerk, court reporter, the attorneys, and defendants to




                                                                     E
No. 37217 -7 -II



 undergo    questioning in      private ";     but because there were too many people to fit into chambers, it

was    going to " turn this     courtroom      into the judge'     s chambers,"    which meant that it was " going to

ask all   the   public   to   now   leave,   except   for the jurors."      1 VRP ( Mar. 8, 2004)      at    25.   The parties


do not dispute that the trial court did not expressly address the five Bone -Club factors on the

record before temporarily closing the courtroom to the public to question prospective jurors in

private. See Bone -Club 128 Wn.2d at 258 -59.


          This   closed portion of       the   proceedings was conducted on           the   record.    The trial court and


the parties individually questioned approximately 27 prospective jurors, nearly one -third of the

jury    pool.     The trial court excused approximately 14 prospective jurors for cause, health

concerns,       and work conflicts.          The trial court then asked the remaining prospective jurors to

reenter the courtroom for general voir dire; it is not clear from the record whether the trial court

also allowed members of the public or the defendants' families to reenter the courtroom at this

time.


                                                II. POST -TRIAL PROCEDURE


                                                       A. Direct Appeal


          On direct appeal to this court, D' Allesandro asserted in his pro se Statement of

Additional Grounds ( SAG)             6 that the trial court had violated his public trial rights by closing the

courtroom       during    a portion of       jury   selection.   Celebisoy,    2006 WL 14519,         at *   9.    In a January

2006    unpublished opinion, we rejected               this   argument "[   b] ecause the trial court took this action at




 6 RAP 10. 10.



                                                                  l
No. 37217 -7 -II



D' Allesandro'   s request       to   protect    his    right   to   a    fair   and   impartial     jury." Celebisoy, 2006 WL

14519, at * 9. We explained:


                 The doctrine of invited error " prohibits a party from setting up an error at
       trial and then complaining                of    it   on appeal."          State v. Pam, 101 Wn.2d 507, 511,
       680 P. 2d 762 ( 1984),           overruled on other grounds [ by] State v. Olson, 126 Wn.2d
       315, 893 P. 2d 629 ( 1995).                 Moreover, we note that D' Allesandro has failed to
       demonstrate any prejudice flowing from the trial court' s limited interviewing of
       potentially tainted jurors in              camera, as         he      requested.     Thus, D' Allesandro' s claim
       fails.


Celebisoy,    2006 WL 14519,           at *    10 ( emphasis added).


        In a footnote related to this analysis, this court quoted D' Allesandro' s counsel' s request,

which request    is   quoted      in full     above.        But this quoted material omitted the last line of defense


counsel' s   statement     in    which counsel              qualified     his    request    by    stating, ` By   that, I mean apart



7 We further explained:
        We note our Supreme Court' s recent decision in State v. Brightman, 155 Wn.2d
        506, 517 -18, 122 P. 3d 150 ( 2005),                     which followed In re Personal. Restraint of
        Orange, 152 Wn.2d 795, 100 P. 3d 291 ( 2004),                      in holding that the trial court erred
        in closing the courtroom to spectators .during the entire jury selection process,
        even though the defendant did not object to the closure.
                  Even assuming, without deciding, that the partial courtroom closure here
        rose to the level of the closures in Brightman and Orange, these cases are
        distinguishable.           D' Allesandro not only failed to object to the closure, as in
        Brightman and Orange; but also he expressly requested in camera interviews of
        prospective jurors in order to avoid tainting the jury pool. The trial court granted

        this request for a limited time and a limited purpose, resulting in excusing several
        potentially tainted jurors for cause.
               We acknowledge that our review would have been easier had the trial
        court articulated its application of the five Brightman and [ Bone -Club] factors
        before granting D' Allesandro' s request to exclude the public from this limited
        portion       of   the   jury    voir     dire.         We        further      note,      however, that        even had
        D' Allesandro           not   requested        limited `.`closure"             of   the    courtroom, (   1)    such in
        camera interviews are appropriate, and ( 2) it could be a legitimate trial strategy
        not to object where such proceedings preserve the impartiality of the jury pool.
 Celebisoy,   2006 WL 14519,            at *   10 n. 13 ( emphasis added).




                                                                         7
No. 37217 -7 -II




from   the remaining    prospective         jurors."      1 VRP ( Mar. 8, 2004)                   at   2(   emphasis    added).       We

                                                                                                                                  8
affirmed    D' Allesandro'      s   conviction,       vacated        his    exceptional         sentence     under     Blakely,       and



remanded    for resentencing.          Celebisoy,     2006 WL 14519,               at *   16.


                                                  B. Petition for Review


         In February 2006, D' Allesandro' s appellate counsel petitioned the Washington State

Supreme Court for review of our decision. Appellate counsel' s sole argument in the petition was


that the trial court had erred in denying D' Allesandro' s request for a lesser included instruction.

         Four months later, in June 2006, the Court issued State v. Easterling, 157 Wn.2d 167,
                            9
137 P. 3d 825 ( 2006),          holding that the trial court had committed reversible error in closing the

courtroom to Easterling and to the public during a pretrial hearing on his co- defendant' s motion

to sever jury trials without first conducting a Bone -Club analysis. Easterling, 157 Wn.2d at 171-

72.    The Court declared: "           The presumptive remedy. for a public trial right violation is reversal

and remand    for   a new   trial."     Easterling, 157 Wn.2d at 174.

         D' Allesandro'     s    petition   for   review       was         still   pending.        D' Allesandro contacted his


appellate counsel and asked her to raise the Bone -Club challenge based on the Supreme Court' s


new    Easterling    decision.         Appellate counsel responded that if the Court denied review of


D' Allesandro'   s petition      for   review,   he   could   file   a personal restraint petition ( PRP),              " arguing any




8
    Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 ( 2004).

9 Our Supreme Court granted review of Easterling in July 2005, after D' Allesandro' s trial, but
before   appellate   counsel        filed D' Allesandro'       s petition          for    review.      The Supreme Court heard
argument    in November 2005, three              months   before D' Allesandro'                 s petition   for   review.
No. 37217 -7 -II



issue he feels the          court should consider             including        those   related   to the   Easterling decision."    PRP


at App. H.

          On October 10,                 our   Supreme Court denied             review.    State v. Celebisoy, 158 Wn.2d 1004

 2006).        We mandated the direct appeal, and on November 28, the trial court resentenced


D' Allesandro.




          As previously              suggested       by his   appellate counsel,        D' Allesandro filed the instant PRP. In


support,       he    attached        declarations from his            mother      and    father stating that ( 1)       they had been

excluded       from the          courtroom          during   at   least   a portion of voir       dire; (   2) they had .wanted to be

present       during      voir   dire to   show support of their son             but   were excluded, (       3) they were not offered

the    opportunity to               object,    and (   4)    they would have objected if they had been given the

opportunity.          His mother also declared that she and D' Allesandro' s father had approached the


bailiff before leaving the courtroom, explained that D' Allesandro was their son, but were told to

leave.        PRP     App.          E.    D' Allesandro'      s    father further declared: "         I know that prior to being

excluded, defense counsel asked the judge ( at [ a] sidebar) if the parents of both defendants could

                               10
stay for      voir   dire. "         PRP App. F.

              We    set   D' Allesandro'        s   PRP for       oral argument    before    a panel of       judges.   Before the first


oral argument, the panel requested and received supplemental briefing on our Supreme Court' s

then    recent "     Bone- Club" decisions in State                  v.   Strode, 167 Wn.2d 222, 217 P. 3d 310 ( 2009),             and



State    v.   Momah, 167 Wn.2d 140, 217 P. 3d 321 ( 2009), and our then recent decisions in State v.




io We note that the record does show that an untranscribed sidebar conference occurred at this
point in the proceedings. See 1 VRP (Mar. 8, 2004) at 25 -26.



                                                                           0
No. 37217 -7 -II




Paumier, 155 Wn.         App.    673, 230 P. 3d 212 ( 2010),      affd, 176 Wn.2d 29, 288 P. 3d 1126 ( 2012),

and   State    v.   Bowen, 157 Wn.      App.   821, 239 P. 3d 1114 ( 2010).        The panel heard argument on


September 3, 2010, and then stayed this case pending our Supreme Court' s decisions in State v.

Wise, 176 Wn.2d 1, 288 P. 3d 1113 ( 2012)° and Paumier.


           We lifted the stay in November 2012, after which the parties filed supplemental briefs

addressing our Supreme Court' s most recent public trial decisions in Wise, Paumier, In re Pers.

Restraint of Morris, 176 Wn.2d 157, 288 P. 3d 1140 ( 2012), and State v. Sublett, 176 Wn.2d 58,


292 P. 3d 715 ( 2012). 11       We then set the case for a second oral argument before a panel of judges.

                                                       ANALYSIS


           D' Allesandro      argues that appellate         counsel      on direct appeal rendered ineffective


assistance because had she raised the Bone -Club issue and cited Easterling in his petition for

review, the Supreme Court would have granted review and reversed on grounds of structural


error and automatic prejudice, and because our opinion in his direct appeal conflicts with the


Supreme Court' s later -decided Easterling opinion on this issue. We agree.



11
     The   parties    have   also   filed
                                  several statements of additional authority.  The State filed an
additional authority citing State v. Halverson,      Wn. App. _,    309 P. 3d 795, 795 -96 ( 2013),
petition for review filed, No. 89461 -2 ( Wash. Oct. 23, 2013), in which we rejected a public trial

violation claim ( based on          questioning   a   sitting juror in   a closed courtroom).   Here, however, we

do not reach D' Allesandro' s second public trial issue involving the trial court' s questioning of a
sitting juror; therefore, we do not further consider Halverson. D' Allesandro filed an additional
authority citing In re Pers. Restraint of Brockie,     Wn.2d _,    309 P. 3d 498, 502 n.2 ( 2013),
which mentions cases addressing the standard of review applied to issues that are per se
prejudicial on direct appeal when those issues are raised collaterally in personal restraint
petitions.     Because we address the public trial issue here as an ineffective assistance of appellate
counsel       claim (emanating from D' Allesando' s earlier direct appeal), we need not address the
standard      discussed in Brockie. We do, however, address D' Allesando' s additional authority In

re Pers. Restraint ofNetherton, 177 Wn.2d 798, 801; 306 P. 3d 918 ( 2013).



                                                             10
No. 37217 -7 -II



                                   I. APPLICABLE STANDARDS OF REVIEW




        Generally,    to be   entitled   to   relief, a   timely PRP12 petitioner must establish " either that he


or she was actually and substantially prejudiced by constitutional error or that his or her trial

suffered from a fundamental defect of a nonconstitutional nature that inherently resulted in a

complete miscarriage of justice."         In re Pers. Restraint ofFinstad, 177 Wn.2d 501, 506, 301 P. 3d

450 ( 2013) (   citing In re Pers. Restraint of Elmore, 162 Wn.2d 236, 251, 172 P. 3d 335 ( 2007)).

Courts apply this heightened standard of review to promote finality when the petitioner has had

previous opportunities        for judicial     review.     See In re Pers. Restraint of Coats, 173 Wn.2d 123,

132, 267 P. 3d 324 ( 2011) ( citing Elmore, 162 Wn.2d                 at   251 ( heightened      standard);   In re Pers.


Restraint of Isadore, 151 Wn.2d 294, 299, 88 P. 3d 390 ( 2004) ( no                     prior opportunity for review);

In re Pers. Restraint of Cook, 114 Wn.2d 802, 810 -12, 792 P. 2d 506 ( 1990)).

         But when, as is the case in an ineffective assistance of appellate counsel claim, the


petitioner has not had a previous opportunity to obtain judicial review, this heightened standard

does   not   apply. Coats, 173 Wn.2d           at   132; Isadore, 151 Wn.2d      at    299. Instead, "[ t] o prevail on a


claim of     ineffective   assistance of appellate counsel, [         Petitioner] must demonstrate the merit of


any legal issue    appellate counsel          raised   inadequately   or   failed to   raise and also show [ ]    he was


prejudiced."     See In re Pers. Restraint ofNetherton, 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, cent. denied, 513 U.S.




 12 The parties agree that D' Allesandro' s PRP is timely under In re Pers. Restraint of Skylstad,
 160 Wn.2d 944, 949 -51, 162 P. 3d 413 ( 2007).




                                                              11
No. 37217 -7 -II



849 ( 1994));   see also Morris, 176 Wn.2d at 166 ( citing Smith v. Robbins, 528 U.S. 259, 285, 120

S. Ct. 746, 145 L. Ed. 2d 756 ( 2000); Orange, 152 Wn.2d at 814)).


                             B. Ineffective Assistance of Appellate Counsel


          To establish deficient performance by appellate counsel, D' Allesandro must show that his

appellate counsel should have known, but failed, to raise the public trial issue in the petition for

review.    See Morris, 176 Wn.2d         at    167.     To establish prejudice, D' Allesandro must show that


had   appellate counsel    included the   public        trial issue   in the   petition   for   review, (   1) the Supreme


Court    would   have     granted   review,     and (    2) the Court would have reversed D' Allesandro' s


conviction or remanded the case back to this court and we would have reversed the conviction.

See Netherton, 177 Wn.2d at 801.


                                               C. Public Trial Rights


          We review whether the trial court has violated a defendant' s public trial right de novo.


Sublett, 176 Wn.2d at 70 ( citing Momah, 167 Wn.2d at 147 -48 ( citing Bone -Club, 128 Wn.2d at

256)).    Additionally,

          There is a strong presumption that courts are to be open at all stages of the trial.
          A criminal defendant' s right to a public trial is found in article I, section 22 of the
          Washington State Constitution and the Sixth Amendment to the United States
          Constitution, both of which provide a criminal defendant with a " public trial by an
          impartial, jury." The public trial right is not absolute but may be overcome to
          serve an overriding interest based on findings that closure is essential and
          narrowly tailored to      preserve   higher     values.     Waller v. Georgia, 467 U.S. 39, 45,
          104 S. Ct. 2210, 81 L.Ed.2d 31 ( 1984).




                                                             12
No. 37217 -7 -II



Sublett, 176 Wn.2d            at   70 -71 ( footnote   omitted).   And "[ i]t is well settled that the public trial right


extends    to   jury     selection [    including]     the questioning    of   individual   prospective   jurors."   In re

                                                                                                 13
Pers. Restraint of Copland, 176 Wn.                 App.    432, 439, 309 P. 3d 626 ( 2013).


   II. FAILURE TO CHALLENGE CLOSED COURTROOM IN DIRECT APPEAL PETITION FOR REVIEW

          We agree with D' Allesandro that our Supreme Court likely would have taken review of

his Bone -Club public trial issue and reversed his conviction if his appellate counsel had raised it

in his direct appeal petition for review because ( 1) the Supreme court issued Easterling while

D' Allesandro'      s petition was         pending; (   2) Easterling clearly established that ( a) the waiver and

invited error doctrines do not apply in the public trial context because it is the trial court' s

responsibility to examine the Bone -Club factors, even when the defense requests courtroom
           14
closure,        and ( b) such closures are per se prejudicial, calling for automatic reversal and remand

for   a   new    trial   on    direct    appeal;   and (   3)   our decision in D' Allesandro' s direct appeal was


contrary to the Supreme Court' s later -filed Easterling decision.

                                                   A. Deficient Performance


          D' Allesandro first satisfies the deficient performance prong of the ineffective assistance

of appellate counsel test by showing that counsel should have known to raise the public trial

issue in the      petition     for    review.   See Morris, 176 Wn.2d          at   167.   Counsel filed the petition for


review in February 2006, just over a year after our Supreme Court issued Orange, four months



 13 Mot. for discretionary review filed, No. 89368 -3 ( Wash. Oct. 7, 2013).
14 D' Allesandro also notes that the record shows that he did not ask the trial court to exclude the
public; thus, waiver /invited error would not have been a bar to raising this issue in the petition
for review.




                                                                   13
No. 37217 -7 -II




after the Court issued Brightman, six months after the Court granted review of Easterling, and

three   months        after   the Court     heard    argument     in    Easterling.      The Court issued its opinion in


Easterling15 in June 2006, four months before it denied D' Allesandro' s petition for review; in the


interim, D' Allesandro had specifically brought Easterling to his appellate counsel' s attention
                                                                                               decision16)
when    he   asked     her to    add   the Bone -Club issue .(from             our appellate                 to the petition for


review,      based     on     this   new    Supreme Court decision.                  Instead,    appellate    counsel   advised



D' Allesandro that he could wait to raise the issue later in a PRP; this advice was deficient given


the existing higher standard of prejudice necessary to warrant collateral relief, in contrast to the

per se prejudice rule applicable on direct appeal for this type of public trial violation. See, e. g.,

Copland, 176 Wn. App. at 439 -41 ( explaining distinction between automatic reversal on direct




is We agree with the State that the proceeding at issue in Easterling was substantially different
from the private voir dire issue here. Nevertheless, our Supreme Court' s broadly stated holding
in Easterling appears to apply to all public trial violations, at least when challenged on direct
appeal: (    1) "
              The presumptive remedy for a public trial right violation is reversal and remand for
a new          and ( 2) a defendant " does not waive his right to appeal an improper closure by
         trial,"

failing to lodge a contemporaneous objection" because it is the trial court' s responsibility to
resist courtroom closure and to consider the Bone -Club factors regardless of whether there is an
objection.          Easterling,      157 Wn.2d       at   174,   176   n. 8,    181 ( citing Orange, 152 Wn.2d at 814;
Brightman, 155 Wn.2d at 514 -15).


16 In our previous 2006 opinion in D' Allesandro' s direct appeal, we relied on both invited error
and  harmless error analyses, both of which the Supreme Court questioned in Easterling. See

Easterling, 157 Wn.2d at 176, 181; see also Celebisoy, 2006 WL 14519, at * 10. Although
Easterling discusses waiver rather than invited error, it emphasizes that it is the trial court' s
responsibility to conduct the Bone -Club analysis before allowing a closure, regardless of whether
the defendant has             requested    the   closure or not.       Furthermore, if appellate counsel had included
the public trial issue in D' Allesandro' s petition for review, counsel likely would have discovered
that we had relied on an incomplete record quotation to support our invited error analysis, which
undermines that analysis.




                                                                  14
No. 37217 -7 -II



appeal for public trial violations in contrast to higher standard of showing actual and substantial
                                                           17
prejudice   necessary to        prevail   in   a   PRP).


         Moreover, close in time to our Supreme Court' s consideration of D' Allesandro' s petition

                                                                                                                            18
for   review,    it   reviewed    and later        accepted     other   similar public    trial   cases     for   review.        For


example, our Supreme Court issued Orange, Brightman, and Easterling near or shortly after the

time D' Allesandro' s counsel filed his petition for review, counsel should have been aware that


the Court was keenly interested in accepting review of cases involving this emerging issue and

developing      the    public    trial doctrine.           We hold that D' Allesandro has satisfied the deficient


performance prong of the ineffective assistance of appellate counsel test based on appellate

counsel' s initial failure and subsequent refusa119 to include the public trial Bone -Club issue in his

petition for review to our Supreme Court.




17 Copland also involved the private interviewing of potential jurors, in chambers, rather than in
open    public    court.    Here, the trial court would have conducted these private interviews in
chambers     had there been           sufficient       space;    instead, it   sought     to     create "    chambers"       in the
courtroom by excluding the public, including D' Allesandro' s family, during these individual
juror interviews.        Division Three, however, denied Copland' s personal restraint petition because
the trial court had attempted to apply the Bone -Club criteria and because Copland could not meet
the high PRP standard of showing actual and substantial prejudice in juxtaposition with the
parties' and trial court' s efforts to insure a fair and impartial jury to try his case ( in contrast to a
direct appeal, in which prejudice would have been presumed and reversal would have been
automatic).      Copland, 176 Wn. App. at 441, 449.
18
      Most notably, our Supreme Court accepted Division Three' s certification of Strode in
November 2007 and granted review of Momah in April 2008.


19 In so holding, it is not our intent to suggest that appellate counsel must always brief and
include issues that her client requests; on the contrary, we recognize that the right to counsel
embodies        the    inherent    value       that   professionals      provide   to    their    clients.        But under the
circumstances of this case, where the issue is whether appellate counsel should have been aware
of this pivotal issue, that her client specifically raised the issue and she advised him to handle it
in a later PRP further establishes counsel' s deficient performance.


                                                                  15
No. 37217 -7 -II



                                                       B. Prejudice


           Turning to the second prong of the ineffective assistance of counsel test, D' Allesandro

shows prejudice,           namely that ( 1)    our Supreme Court likely would have taken direct review or

remanded the case back to us for reconsideration, and ( 2) his public trial violation claim would


likely have been successful in winning reversal of his conviction if the Supreme Court had

granted review of the public trial issue because he would have been entitled to benefit of the per

se prejudice /automatic reversal rule for this error on direct appeal and remand for a new trial.

See Netherton, 177 Wn.2d at 802. If appellate counsel here had included the public trial issue in


D' Allesandro' s petition for review, the Supreme Court likely would either granted review or

stayed     the     case   pending the   other public    trial cases   it   was   considering. 20   See Netherton, 177

Wn.2d at 80221; see also e. g., Strode, 167 Wn.2d at 224 -25 ( certification from Division Three of

this   court accepted        in November 2007); Momah, 167 Wn.2d at 140 ( petition for review granted


January 2008).




20
     We fail to perceive how, as the State asserts, the justices considering D' Allesandro' s petition
for review would have noticed sua sponte the potential public trial issue, in the absence of this
issue in the        petition.   Although our Supreme Court has authority to review issues not raised by
the parties, it generally limits its consideration to the issues the parties place before them in the
petition     for   review and answer.         See RAP 13. 7( b) ( Court limits review to " questions raised in the
       petition for review and the answer, unless the Supreme Court orders otherwise upon granting
of   the   motion or petition:");     State v. Collins, 121 Wn.2d 168, 178, 847 P. 2d 919 ( 1993).


21 Netherton established ineffective assistance of appellate counsel because, if the relevant issue
had been raised, the Court would have stayed a petition for review of the Netherton' s direct
appeal pending a similar case on review and, under that other decision, Netherton would have
been entitled to relief. Netherton, 177 Wn.2d at 801.




                                                              16
No. 37217 -7 -II




            D' Allesandro also would have been able to establish that his courtroom closure during

voir dire was the type of closure that our Supreme Court has held establishes per se prejudice


requiring         automatic reversal on              direct   appeal.        In Wise, a fivejustice majority of our Supreme

Court held that ( 1) public trial violations during voir dire are per se prejudicial because this is the

type      of     structural    error    wherein "       it is impossible to show whether the structural error of


deprivation         of   the   public   trial   right    is   prejudicial ";       and ( 2) the remedy for a voir dire violation

must      be     a new   trial because it       is   unreasonable           to think that    a "` redo "'   of voir dire would provide


an adequate         remedy.        Wise, 176 Wn.2d              at   19 (   emphasis added);       see also Easterling, 157 Wn.2d
            22
at   181.


            In Momah, our Supreme Court found no public trial right violation when the defendant


proposed closing the courtroom. 167 Wn.2d at 151 -52. Arguably, the facts here are similar. But

our Supreme Court seems to be retreating from Momah, by recently noting, for example, that

Momah "          presented a unique confluence of                    facts."       Wise, 176 Wn.2d at 14 -15; see also Paumier,


176 Wn.2d           at   35 -36.    Furthermore, unlike in Momah, the full quote from the record here ( in


contrast to the truncated quote in our 2006 opinion) arguably shows that D' Allesandro' s counsel

did not ask the trial court to exclude the public from the individual juror voir dire; rather, defense

counsel          asked    that the      individual           voir    dire simply take          place "      apart from the remaining




22
     In   Easterling ( which did            not      involve        jury    voir   dire),   a sevenjustice majority ruled that ( 1)
denial of the right to a public trial " is one of the limited classes of fundamental rights not subject
to harmless         error analysis,"       and ( 2)p] rejudice is necessarily presumed where a violation of the
                                                        "[
public      trial   right occurs."        157 Wn.2d at 181 ( citing Bone -Club, 128 Wn.2d at 261 -62; Neder v.
 United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 ( 1999)).




                                                                             17
No. 37217 -7 -I1



                    23
prospective jurors. "      1 VRP ( Mar. 8, 2004)           at   2 -3 (   emphasis       added).    And, again unlike in


Momah, the trial      court    here,    rather   than    D' Aliesandro,          expanded the scope from private


questioning about personal matters to include questioning potential jurors about media exposure

 a topic that is not likely to be embarrassing or difficult for a potential juror to talk about in

public).




           Although the   trial   court' s    statements    here         noted   public    trial    rights   generally,   its


statements also suggested that it was the trial court' s common practice to conduct private voir


dire on certain private or personal topics in chambers and that the trial court may have believed
                                                                                                        24
that only the evidentiary     phase    of the trial   was required       to be   open   to the   public.     Finally, unlike

in Momah, (    1) there is nothing in the record suggesting that the parties and the court otherwise

discussed how to tailor any closures narrowly, or the public' s right to presence during this part of

the proceedings25; and ( 2) the trial court did not address the Bone -Club factors on the record,




   Additionally, although D' Allesandro' s counsel proposed the jury questionnaire that advised
the jurors that they could request to be questioned in private, there is nothing in the record
showing that D' Allesandro knew that this procedure could potentially implicate his public trial
rights or that defense counsel' s questionnaire did not merely reflect the standard procedure for
this   courtroom.   Furthermore, the         questionnaire      did      not   explain what " private"        meant:   That
explanation was contained in a cover sheet, which the record does not show or even suggest was
drafted by defense counsel rather than by the court.
24
     Given that Orange was not filed until eight months after this trial, it is understandable that the
trial court may not have considered jury selection to be subject to public trial requirements.
25
    Nor is there any indication in the record that other factors ( such as lack of space) would have
 interfered with questioning the jurors individually in public about their media exposure because
 the trial court questioned the individual jurors in an empty courtroom and the record does not
 show that there were any space issues during this part of the proceedings.



                                                           18
No. 37217 -7 -II



                                                                                             26
either   explicitly,      or   implicitly    as    did the trial    court     in Momah.           As in Morris,. we find
                                                                                                               27

prejudice here in the fact that if appellate counsel had raised the public trial issue on direct

appeal, D' Allesandro would have received a new trial due to structural error.28 See Copland, 176

Wn. App. at 440.

          We hold that D' Allesandro has shown that ( 1) had counsel raised this public trial issue in

the petition for review, our Supreme Court would have likely either accepted review or stayed

the    petition    for   review    pending        other   public   trial    cases   it had   accepted   for   review; (   2) the


Supreme Court would have held that the trial court violated D' Allesandro' s public trial rights,

which constituted per se prejudice on direct appeal, or at least remanded to our court to address

this issue;   and (      3)    D' Allesandro would have been entitled to reversal of his conviction and




26
      See Wise, 176 Wn.2d           at   12 -13.    See also Strode, 167 Wn.2d at 228 -29; and 232, 234 -36 ( J.
Fairhurst concurring).

27 176 Wn.2d at 167 -68.

28 To underscore our conclusion about the likelihood of D' Allesandro' s success on direct appeal
had appellate counsel pursued it, we note several recent Supreme Court opinions addressing the
public trial issue in the jury voir dire context, holding that, at least on direct review, interviewing
jurors in private without first conducting a Bone -Club analysis is a structural error that is per se
prejudicial       warranting      reversal and not subject         to   a   harmless   error analysis.    See e. g., Paumier,
 176 Wn.2d at 32, 35; Wise, 176 Wn.2d at 14 -15.


                                                                   19
No. 37217 -7 -II



remand for a new trial.


       Accordingly, we grant D' Allesandro' s PRP and deny the State' s request for costs under

RCW 10. 73. 160.



                                                           i-
                                                Hunt, J.
                                                            I
We   con




                          IIA

Woswick, C. J.

                   c.l .

Maxa, J.




                                              20
