                                                             FILED
                                                           APRIL 3, 2018
                                                   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. 34605-6-III
                                             )
                    Respondent,              )
                                             )
      v.                                     )         UNPUBLISHED OPINION
                                             )
KYLE JOHNSON,                                )
                                             )
                    Appellant.               )


      PENNELL, A.C.J. — Kyle Johnson appeals his guilty pleas and convictions

pertaining to two counts of custodial assault. We decline review of his claims under the

doctrine of res judicata and RAP 2.5.

                                   BACKGROUND

      Mr. Johnson’s assault convictions arose from an incident that occurred on

December 17, 1988. Trial was scheduled for October 9, 1989; however, after June 26,

1989, Mr. Johnson was charged with aggravated murder. State v. Johnson, noted at

66 Wn. App. 1044, slip op. at 1 (1992). On October 9, 1989, the State and Mr. Johnson

entered into a plea agreement. The agreement provided Mr. Johnson’s standard sentence

range was 0-12 months based on an offender score of 0. It also provided:
No. 34605-6-III
State v. Johnson


              In consideration of defendant entering guilty pleas . . . plaintiff
       agrees to make no evidentiary use of these convictions in its case in chief
       under cause number 89-1-00050-6 in which the defendant is charged with
       aggravated murder in the first degree; however, plaintiff reserves any
       evidentiary use of these convictions permitted by the rules of evidence or
       other authority for impeachment, rebuttal, or sentencing in this or any other
       cause, including the defendant’s above referenced prosecution for
       aggravated murder in the first degree.

Johnson, slip op. at 1-2 (alteration in original). During the plea hearing, the judge told

Mr. Johnson, “There is no right to appeal from the plea of guilty,” to which Mr. Johnson

responded “Yes.” Clerk’s Papers at 30. The trial court accepted Mr. Johnson’s guilty

plea and deferred sentencing until after the aggravated murder trial.

       Prior to sentencing, Mr. Johnson moved to withdraw his guilty plea. Mr. Johnson

claimed that when he pleaded guilty he failed to understand how his plea could be used

against him in his upcoming murder trial. The trial court denied Mr. Johnson’s motion

and reserved its ruling on the admissibility and use by the State of the assault convictions

in the murder trial under ER 404 or ER 609.

       On June 8, 1990, Mr. Johnson appealed the trial court’s decision to this court.

During the pendency of the appeal, Mr. Johnson pleaded guilty to the pending murder

charge and the trial court conducted a combined sentencing hearing for Mr. Johnson’s

assault and murder convictions.




                                              2
No. 34605-6-III
State v. Johnson


       At Mr. Johnson’s sentencing hearing, the State represented that Mr. Johnson’s

“standard range would be three to eight months.” Report of Proceedings (June 28, 1990)

at 6. The trial court accepted this and sentenced Mr. Johnson to 150 days for each count,

to run concurrently with his aggravated murder sentence, based on an offender score of

one and the range being three to eight months. The court did not impose a term of

community custody.

       Mr. Johnson did not appeal the judgment and sentence subsequent to his

sentencing hearing. However, the appeal regarding the order denying Mr. Johnson’s

motion to withdraw his guilty plea remained pending and a decision was filed by this

court on July 21, 1992. In that appeal, Mr. Johnson argued: (1) he did not understand

how his guilty plea on the assault charges could be used against him at the murder trial,

and (2) the State’s illusory or deceptive promise induced him into entering the plea.

Johnson, slip op. at 2-4. Our court denied Mr. Johnson’s claim for relief, finding the

State’s plea agreement promise was neither illusory nor deceptive. Id. at 5. The upshot

of our court’s decision was that Mr. Johnson had not shown his plea was involuntary.

       On April 22, 2016, Mr. Johnson filed a notice of appeal of his 1990 judgment and

sentence. Our court commissioner granted his motion to extend the time to appeal

because Mr. Johnson was affirmatively misadvised in 1989 of his right to appeal the


                                             3
No. 34605-6-III
State v. Johnson


guilty plea. Commissioner’s Ruling, State v. Johnson, No. 34605-6-III (Wash. Ct. App.

Dec. 13, 2016).

                                        ANALYSIS

       Mr. Johnson argues his assault convictions should be reversed because his guilty

plea was involuntary and his arraignment was not conducted in open court. The first

claim is barred by stare decisis. The second claim fails as it was unpreserved at trial and

Mr. Johnson has not established a basis for review under RAP 2.5(a)(3).

Guilty plea challenge and res judicata

       The doctrine of res judicata applies in criminal cases. State v. Dupard, 93 Wn.2d

268, 273, 609 P.2d 961 (1980) (citing State v. Peele, 75 Wn.2d 28, 30, 448 P.2d 923

(1968)). It serves to prevent relitigation of already determined causes, curtail multiplicity

of actions, prevent harassment in the courts and inconvenience to the litigants, and

promote judicial economy and judicial finality. Dupard, 93 Wn.2d at 272. Res judicata

occurs when a prior judgment has a concurrence of identity with respect to the subject

matter, cause of action, persons and parties, and the quality of the persons for or against

whom the claim is made. Rains v. State, 100 Wn.2d 660, 663, 674 P.2d 165 (1983)

(citing Seattle-First Nat’l Bank v. Kawachi, 91 Wn.2d 223, 225, 588 P.2d 725 (1978)).




                                              4
No. 34605-6-III
State v. Johnson


       Mr. Johnson previously appealed his guilty plea to this court, arguing it was

involuntary. At the time of his previous appeal, Mr. Johnson had access to all the

information he now claims compels a decision in his favor. Our court considered Mr.

Johnson’s claims on the merits back in 1992 and ultimately ruled Mr. Johnson had failed

to show his plea was involuntary. The voluntariness of Mr. Johnson’s plea therefore must

be considered the law of the case. RAP 12.2. Mr. Johnson has not demonstrated the

interests of justice would be served by reopening our prior decision.

Courtroom closure

       Apart from the attack on his guilty plea, Mr. Johnson claims his convictions are

invalid because arraignment did not occur in open court. This is an issue that was not

raised in the prior appeal. Nor was it raised with the trial court. It therefore will be

reviewed on appeal only if Mr. Johnson can show a manifest error implicating the

constitutional right to a public trial. RAP 2.5(a)(3).

       The manifest error standard requires the trial record be sufficient to fully analyze

the defendant’s claims. State v. Koss, 181 Wn.2d 493, 502-03, 334 P.3d 1042 (2014).

We recognize that, beyond the docket entries, it appears there is no longer a record of the

arraignment available for transmittal by the trial court. However, Mr. Johnson has not

submitted any other record supporting his claim that the arraignment did not occur in


                                              5
No. 34605-6-111
State v. Johnson


open court. Id. at 503-04. We will not excuse his failure to do so. Id. at 503 (An

"appellant bears the responsibility to provide a record showing that such a closure

occurred in the first place."). Given this state of the record, id. at 501-02, we decline

review of Mr. Johnson's courtroom closure claim under RAP 2.5.

                                      CONCLUSION

       Mr. Johnson's judgment of conviction is affirmed.

       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.


                                           Pennell, A.CJ.
WE CONCUR:




   sm~.'     {I




                                              6
