[No. 73608-1. En Banc.]
Argued January 13, 2004. Decided November 4, 2004.
In the Matter of the Personal Restraint of AMEL W. DALLUGE , Petitioner .
[1] Personal Restraint - Scope - Issue Not Raised on Appeal - In General. A personal restraint petitioner may raise a new issue not raised on direct appeal if it involves either error of constitutional magnitude or nonconstitutional error constituting a fundamental defect inherently resulting in a miscarriage of justice. In order to obtain relief on a claim of constitutional error or a fundamental defect, the personal restraint petitioner must establish actual and substantial prejudice.
[2] Personal Restraint - Grounds - Ineffective Assistance of Counsel - On Appeal - Test. A personal restraint petitioner seeking relief on a claim that appellate counsel was ineffective for failing to raise a legal issue on appeal must show (1) that the issue had merit and (2) actual prejudice.
[3] Personal Restraint - Petition - Timeliness - Statutory Limits - Exceptions - Jurisdictional Challenge - In General. Under RCW 10.73.090 (1), the one-year time limit for filing a petition or motion for collateral relief from a criminal judgment and sentence does not apply if the judgment and sentence were entered by a court lacking jurisdiction over the matter.
[4] Courts - Jurisdiction - What Constitutes - Elements. The jurisdictional elements of a valid judgment are (1) jurisdiction of the subject matter, (2) jurisdiction of the person, and (3) the power or authority to render the particular judgment.
[5] Juveniles - Juvenile Justice - Jurisdiction - Exclusive Original Jurisdiction - In General. Under RCW 13.04.030 (1), the power to hear and determine cases involving juveniles alleged to have committed criminal offenses, traffic and civil infractions, and certain other violations is vested exclusively in the juvenile division of the superior court unless otherwise provided by the statute. "Exclusively" means to the exclusion of all other courts.[6] Juveniles - Juvenile Justice - Jurisdiction - Adult or Juvenile - Jurisdiction of Adult Court - Circumstances. A juvenile may not be prosecuted in an adult criminal court unless (1) the juvenile is of an age and is charged with a crime that by statute automatically subjects the juvenile to the jurisdiction of adult criminal court; (2) jurisdiction over the prosecution is transferred from a juvenile court to the adult division of superior court following a declination hearing conducted by the juvenile court in which the juvenile court waives its own exclusive jurisdiction; or (3) the juvenile has willfully deceived the adult criminal court into believing
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that he or she is an adult, the juvenile does not correct the error, and the juvenile court waives its jurisdiction or the adult criminal court confirms that the juvenile court would have waived its jurisdiction had it been presented with the case.
[7] Juveniles - Juvenile Justice - Jurisdiction - Adult or Juvenile - Jurisdiction of Adult Court - Automatic Conferral - Refiling of Charges - Loss of Jurisdiction - Effect. When a juvenile is charged with an offense over which the adult criminal court has automatic jurisdiction but the charge is later amended to charge an offense over which the adult criminal court does not have automatic jurisdiction, the case must be remanded to juvenile court for further proceedings.
[8] Personal Restraint - Petition - Timeliness - Statutory Limits - Exceptions - Jurisdictional Challenge - Juvenile in Adult Criminal Court. Under RCW 10.73.090 (1), a judgment entered against a juvenile by an adult criminal court not having jurisdiction over the matter may be collaterally attacked more than one year after the judgment was entered.
[9] Juveniles - Juvenile Justice - Jurisdiction - Adult or Juvenile - Jurisdiction of Adult Court - Loss of Jurisdiction - Judgment Entered - Remedy - Age of Majority. When an adult criminal court has entered a judgment against a juvenile offender despite not having jurisdiction over the matter and the juvenile has since turned 18 years old, the remedy is for the superior court to conduct a de novo hearing to determine whether declination of juvenile court jurisdiction would have been appropriate. If declination would have been appropriate, then the conviction stands. If declination would not have been appropriate, then the conviction must be set aside and a new trial must be held in adult criminal court.
[10] Criminal Law - Right to Counsel - Effective Assistance of Counsel - On Appeal - Collateral Challenge. A criminal defendant has a Sixth Amendment right to the effective assistance counsel on direct appeal that may be vindicated upon collateral review.
[11] Juveniles - Juvenile Justice - Jurisdiction - Adult or Juvenile - Jurisdiction of Adult Court - Loss of Jurisdiction - Judgment Entered - Failure To Object - Ineffective Assistance of Counsel. Where an adult criminal court enters a judgment against a juvenile despite the absence of jurisdiction over the case, the failure of counsel for the juvenile to challenge the validity of the judgment on direct appeal will support a claim of ineffective assistance of appellate counsel on collateral review.[12] Criminal Law - Right to Counsel - Effective Assistance of Counsel - On Appeal - Prejudice - Test. For purposes of a claim of ineffective assistance of appellate counsel, prejudice is
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demonstrated by a reasonable probability that, but for counsel's failure to raise a meritorious issue, the appellant would have prevailed on appeal.
MADSEN , JOHNSON , and IRELAND , JJ., dissent by separate opinion.
Nature of Action: A criminal offender who, at age 17, was tried and convicted in adult criminal court of two counts of third degree rape and whose convictions were affirmed on appeal sought relief from personal restraint on claims that he was improperly tried as an adult and that his trial and appellate counsel were ineffective for failing to object to improper adult criminal court jurisdiction. The petitioner was originally charged with first degree rape by means of forcible compulsion and kidnapping, for which the adult criminal court automatically had exclusive original jurisdiction. The information was later amended to charge one count of third degree rape and one count of second degree rape or, in the alternative, third degree rape. Although the adult criminal court did not automatically have exclusive original jurisdiction over the amended charges, neither defense counsel nor the State requested a remand to juvenile court, and the trial court did not remand on its own motion.
Court of Appeals: The court denied the petition by an order dated February 12, 2003.
Supreme Court: Holding that the petition was not time barred because the adult criminal court lacked jurisdiction to adjudicate the charge and that the petitioner's assistance of counsel was ineffective where counsel failed to challenge the adult criminal court's jurisdiction, the court reverses the decision of the Court of Appeals, grants the petition, and orders the superior court to conduct a hearing to determine whether the juvenile court would have retained jurisdiction over the case.
David Zuckerman , for petitioner .
John D. Knodell , Prosecuting Attorney, and Teresa J. Chen and Carolyn J. Fair , Deputies, for respondent .
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BRIDGE , J . - At the age of 17, Amel Dalluge was tried and convicted as an adult of two counts of rape in the third degree, and these convictions were upheld on appeal. In a personal restraint petition, Dalluge now contends that either his convictions should be reversed because he was improperly tried as an adult, or his case should be remanded to superior court for a hearing on whether the juvenile court should have retained jurisdiction. Dalluge also asserts that both his trial and appellate counsel were ineffective for failing to object to improper adult criminal court jurisdiction at trial and on appeal.
By the terms of our grant of review, the only issues before this court relate to the absence of a juvenile court decline hearing. However, the Court of Appeals chief judge disposed of the petition on its merits and consequently declined to address the procedural validity of the petition. Thus, we must also determine, as an initial matter, whether the petition is procedurally barred.
We conclude that the petition is not procedurally barred, the adult criminal court lacked jurisdiction, and Dalluge suffered from ineffective assistance of appellate counsel because on direct appeal his attorney failed to challenge the adult criminal court's lack of jurisdiction. We grant the petition and remand to the superior court for a hearing on whether the juvenile court would have retained jurisdiction in this case pursuant to Dillenburg v. Maxwell , 70 Wn.2d 331 , 413 P.2d 940, 422 P.2d 783 (1966).
I
Facts and Procedural History
On August 21, 1997, Amel Dalluge and two other high school boys gave 15-year-old H.B. a ride home from an
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unsupervised teenage party. When the group left the party, H.B. was so intoxicated that she could not stand and she had to be carried to the car. Instead of taking H.B. directly home, the boys drove her to a remote location. The boys pulled her out of the car and eventually placed her on her back on the gravel road. Even though H.B. did not move or respond, the boys took turns having sex with H.B. Dalluge held H.B.'s leg so that another boy could position himself on top of her and later had sex with H.B. himself. Afterward, the boys picked H.B. up off the ground, helped her into the car, and dropped her off near her home.
On September 18, 1997, the State charged 17-year-old Dalluge with rape in the first degree by means of forcible compulsion and kidnapping. Because Dalluge was over 16 and the charged crime was a serious violent offense, the adult criminal court automatically had exclusive original jurisdiction. RCW 13.04.030 (1)(e)(v)(A). The State later amended the information, reducing the charges to include one charge of rape in the third degree by complicity (because Dalluge had helped one of the other boys to rape H.B.) and a second charge of rape in the second degree, or in the alternative, rape in the third degree. Although these charges no longer resulted in automatic adult criminal court jurisdiction, neither attorney requested a remand to the juvenile court, and the trial judge did not remand on his own motion.
On March 30, 1998, Dalluge was convicted by a jury in adult criminal court of one count of third degree rape as principal and one count of third degree rape by complicity. Dalluge was sentenced to 14 months on each count to be served concurrently, followed by 36 months in community custody. Dalluge appealed his conviction and the State appealed the sentence. The Court of Appeals affirmed the conviction but remanded for resentencing. State v. Dalluge , No. 17541-3- III, 1999 WL 1079190, at *6, 1999 Wash. App. LEXIS 2011. Upon resentencing, Dalluge received 25 months on each count to be served concurrently, followed by 36 months in community custody. A mandate was issued on
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March 9, 2000. Dalluge appealed the amended sentence but the Court of Appeals affirmed. State v. Dalluge , No. 20054-0- III, 2002 WL 596816, at *2, 2002 Wash. App. LEXIS 646. A second mandate was issued on May 20, 2002.
On September 27, 2002, Dalluge filed a personal restraint petition at the Court of Appeals, which included an argument that the adult criminal court had no jurisdiction over Dalluge and he had been denied his right to a decline hearing in juvenile court. The chief judge of the Court of Appeals, Division Three, dismissed the petition on the merits, stating that although the failure to remand for a decline hearing was error, because Dalluge raised the decline hearing issue for the first time on collateral review, in order to prevail he must demonstrate actual and substantial prejudice by showing that the juvenile court would have retained jurisdiction over him. The chief judge determined that Dalluge failed to prove actual and substantial prejudice. Because the petition was dismissed on the merits, the chief judge did not consider the timeliness of Dalluge's petition.
Dalluge filed a motion for discretionary review in this court, arguing again that his convictions should be reversed because he was improperly tried as an adult. This court granted review "only as to the issues regarding the absence of a juvenile court decline hearing, including whether trial or appellate counsel was ineffective." Order (Sept. 30, 2003).
II
[1, 2]Generally, upon collateral review, a petitioner may raise a new error of constitutional magnitude or a nonconstitutional error which constitutes a fundamental defect that inherently results in a miscarriage of justice. In re Pers. Restraint of Lord , 123 Wn.2d 296 , 303, 868 P.2d 835 (1994). Where constitutional error or fundamental defect is alleged, the petitioner must show that he or she was actually and substantially prejudiced by the error. Id . If a
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petitioner raises ineffective assistance of appellate counsel on collateral review, he or she must first show that the legal issue that appellate counsel failed to raise had merit. In re Pers. Restraint of Maxfield , 133 Wn.2d 332 , 344, 945 P.2d 196 (1997). Second, the petitioner must show that he or she was actually prejudiced by appellate counsel's failure to raise the issue. Id .
This court must first address whether Dalluge's petition is procedurally barred. RCW 10.73.090 . If the petition is not time barred then we must also determine the proper remedy for the trial court's failure to remand to juvenile court once the adult court lost automatic jurisdiction. Closely related to the question of the proper remedy for any trial court error, we must determine whether Dalluge's appellate counsel was ineffective when he failed to raise the adult court's lack of jurisdiction on direct appeal.
Procedural Bar
This court limited review to "the issues regarding the absence of a juvenile court decline hearing, including whether trial or appellate counsel was ineffective." Order (Sept. 30, 2003). However, the Court of Appeals chief judge declined to address the timeliness of the petition and disposed of the petition on its merits. The State continues to argue that Dalluge's petition is time barred because he filed his personal restraint petition more than one year after the mandate was issued terminating the appeal from his conviction .«1»
[3]RCW 10.73.090 provides that "[n]o petition or motion for collateral attack on a judgment and sentence in a criminal case may be filed more than one year after the judgment becomes final." RCW 10.73.090 (1). However, the
«1»Dalluge has filed a motion to strike portions of the State's response to the petitioner's supplemental brief. The motion to strike is denied. Although Dalluge did not cover the procedural issue in his briefs, his motion to strike refers the court to his response to the State's motion for dismissal, filed at the Court of Appeals. His arguments there adequately address the issue such that no further briefing is needed.
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RCW 10.73.090 time bar applies only if the judgment and sentence "[were] rendered by a court of competent jurisdiction." RCW 10.73.090 (1). Dalluge contends that because the juvenile court had exclusive jurisdiction over his proceedings, the adult criminal court lacked competent jurisdiction in his case. The State seems to argue, for the first time at oral argument, that the adult criminal court did have jurisdiction in this case based on Dalluge's failure to object at trial to adult criminal court jurisdiction or request a remand to juvenile court after the information was amended.«2»
[4]In State v. Werner , 129 Wn.2d 485 , 487, 918 P.2d 916 (1996), this court specifically clarified the nature of juvenile court jurisdiction. Significantly, the juvenile court is a division of the superior court; it is not a separate court. Id . at 492. The Werner court recognized that there are " 'three jurisdictional elements in every valid judgment, namely, jurisdiction of the subject matter, jurisdiction of the person, and the power or authority to render the particular judgment.' " Id . at 493 (quoting In re Marriage of Little , 96 Wn.2d 183 , 197, 634 P.2d 498 (1981)). The superior court has jurisdiction over the subject matter of juvenile offenses under article IV, section 6 of the Washington Constitution and RCW 2.08.010 . Superior courts also have personal jurisdiction over juveniles who commit crimes in Washington. RCW 9A.04.030 ; State v. Golden , 112 Wn. App. 68 , 74, 47 P.3d 587 (2002).
[5]However, by statute, only the juvenile division of the superior court has the power to hear and determine certain juvenile matters. RCW 13.04.030 (1) provides that juvenile divisions of the superior courts in Washington have " exclusive original jurisdiction over all proceedings . . . (e) [r]elating to juveniles alleged or found to have committed offenses, traffic or civil infractions, or [enumerated] violations," (em
«2»Because we dispose of the procedural issue on jurisdictional grounds, we need not address the question, raised by the State, of whether the one-year clock began to run on the date that Dalluge's conviction became final or on the date that the final mandate was issued in his case.
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phasis added) unless one of the exceptions in RCW 13.04.030 (1)(e) applies. Black's Law Dictionary defines "exclusive jurisdiction" as "[a] court's power to adjudicate an action or class of actions to the exclusion of all other courts." BLACK'S LAW DICTIONARY 856 (7th ed. 1999). Thus, the plain language of RCW 13.04.030 (1) requires juvenile court jurisdiction in certain cases.
[6]Two of the statutory exceptions to the juvenile division's exclusive jurisdiction are relevant to this case. First, if "[t]he juvenile is sixteen or seventeen years old and the alleged offense is: (A) A serious violent offense as defined in RCW 9.94A.030 ," the adult criminal court shall have " exclusive original jurisdiction." RCW 13.04.030 (1)(e)(v)(A) (emphasis added). Second, the juvenile court may conduct a decline hearing upon the request of a party or on its own motion. RCW 13.04.030 (1)(e)(i); RCW 13.40.110 . Key to this case is the provision that unless waived by the juvenile court , the parties, and their counsel, a decline hearing in juvenile court must be held if the respondent is 15, 16, or 17 years old and the information alleges a class A felony such as rape in the second degree, the amended charge in this case. RCW 13.40.110 (1)(a); RCW 9A.44.050 .«3»After the decline hearing, the juvenile court can waive its exclusive jurisdiction by "transfer[ring] jurisdiction of a particular juvenile to adult criminal court," RCW 13.04.030 (1)(e)(i), "upon a finding that the declination would be in the best interest of the juvenile or the public." RCW 13.40.110 (2).«4»
In State v. Mora , 138 Wn.2d 43 , 49, 977 P.2d 564 (1999), this court recognized that the statutes contemplate only "automatic decline, based on the nature of the crime, or an actual decline hearing by the juvenile court." In Mora , as in this case, charges against the juvenile defendant originally subjected him to automatic adult criminal court jurisdic
«3»The dissent seems to ignore this provision, which clearly requires waiver not only by the parties and their counsel but also by the juvenile court.
«4»Although the State asserts that parties can stipulate to adult court jurisdiction, it cites to no authority that suggests that parties may independently agree to adult court jurisdiction without the approval from the juvenile court.
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tion. Id . at 45. The prosecutor later amended the information, reducing the charge such that automatic decline of the juvenile court's jurisdiction no longer applied. Id . at 47. After a trial and guilty verdict in adult criminal court, defense counsel moved for arrest of judgment based on lack of jurisdiction of the adult criminal court. Id . The Mora court held that:
With the exception of those offenses set forth in RCW 13.04.030 , the Legislature intended that juvenile courts maintain not only exclusive original jurisdiction over all proceedings relating to juveniles, but also discretionary authority to determine whether to transfer jurisdiction to adult court .
Id . at 49. Therefore, the legislature intended the adult criminal court to have jurisdiction over a juvenile proceeding only by means of automatic decline based on the nature of the crime or as the result of an actual decline hearing where the juvenile court waives its own exclusive jurisdiction. Id . The juvenile court's decision to either maintain or decline its exclusive jurisdiction is a mandatory step absent automatic decline based on the nature of the crime.
Finally, Washington courts have held that under very limited circumstances, where a juvenile willfully deceives an adult criminal court into believing that he or she is an adult and does not correct the error, the defendant waives his or her right to proceed in juvenile court, and adult criminal court jurisdiction can be deemed proper on that basis alone. Sheppard v. Rhay , 73 Wn.2d 734 , 739, 440 P.2d 422 (1968); State v. Mendoza-Lopez , 105 Wn. App. 382 , 387-89, 19 P.3d 1123 (2001) (finding no waiver absent willful deception); State v. Anderson , 83 Wn. App. 515 , 519-21, 922 P.2d 163 (1996) (finding no waiver where juvenile's correct age was revealed at trial); Nelson v. Seattle Mun. Court , 29 Wn. App. 7 , 10, 627 P.2d 157 (1981). To hold otherwise would burden the adult criminal court with conducting an independent investigation as to a defendant's true age to avoid a situation where a deceptive juvenile could take his chances in adult court, but later seek to overturn an adult court conviction based on his minority.
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Sheppard , 73 Wn.2d at 740 .«5»Yet in both Sheppard and Nelson , the only cases in which waiver was found to have occurred, both juvenile petitioners underwent a posttrial hearing in superior court to determine whether adult criminal court jurisdiction had been proper. Sheppard , 73 Wn.2d at 735 ; Nelson , 29 Wn. App. at 10 ; see also Dillenburg , 70 Wn.2d 349 . As explained in more detail below, such a hearing can serve as a substitute for the juvenile court's decline hearing requirement where necessary. Dillenburg , 70 Wn.2d at 355 -56.«6»Therefore, even where Washington courts have found the juvenile waived his or her right to proceed in juvenile court, adult criminal court jurisdiction was not proper until either the juvenile court also waived its jurisdiction or the adult criminal court confirmed that the juvenile court would have waived its jurisdiction in that case.«7»
In sum, absent automatic decline by statute, actual decline by the juvenile court, or waiver based on deception that has been confirmed by a juvenile court or a substitute Dillenburg hearing in adult court, Washington courts have held that the adult criminal court lacks jurisdiction over a juvenile's proceeding. Mora , 138 Wn.2d at 53 (" 'the adult court determined the statutory criteria for its "exclusive original jurisdiction" . . . were not met, the court would lack
«5»It is important to note that subject matter jurisdiction cannot be waived, but personal jurisdiction can be waived. Skagit Surveyors & Eng'rs, L.L.C. v. Friends of Skagit County , 135 Wn.2d 542 , 556, 958 P.2d 962 (1998). Jurisdictional requirements embodied in statutes can be waived, but waiver should be found only sparingly. Lewis County v. W. Wash. Growth Mgmt. Hr'gs Bd ., 113 Wn. App. 142 , 155, 53 P.3d 44 (2002).
«6»As explained in more detail below, the Dillenburg court held that where adult criminal jurisdiction is deemed to have been improper, the appellate court can remand to the adult or juvenile court (depending upon the defendant's current age) to determine whether transfer to adult criminal court would have been proper in that case. Dillenburg , 70 Wn.2d at 355 . Thus, an after-the-fact Dillenburg hearing in adult court can serve as a substitute for a decline hearing in juvenile court.
«7»More recently, two Court of Appeals cases have evaluated whether the juvenile waived the right to proceed in juvenile court without first remanding for a hearing. See Mendoza-Lopez , 105 Wn. App. at 387 -89; Anderson , 83 Wn. App. at 519 -21. In both cases, the Court of Appeals found no waiver, and this court has not yet spoken to the propriety of this practice.
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jurisdiction over the juvenile , in the absence of a declination hearing' " (emphasis added) (quoting In re Boot , 130 Wn.2d 553 , 565 n.7, 925 P.2d 964 (1996))); id . ("adult criminal court lacks jurisdiction if juvenile court improperly declined juvenile offender" (emphasis added) (citing State v. Pritchard , 79 Wn. App. 14 , 20, 900 P.2d 560 (1995))). See also Werner , 129 Wn.2d at 494 (noting that by statute, only the juvenile division had the power to hear and determine the case against the juvenile offender); Mendoza-Lopez , 105 Wn. App. at 386 -87; Anderson , 83 Wn. App. at 518 .
[7]In this case, Dalluge was 17 years old when the prosecutor filed the amended information, after which Dalluge was no longer charged with a serious violent offense. Thus, the adult criminal court no longer had automatic jurisdiction over his proceedings. See RCW 13.04.030 (1)(e)(v). Once the prosecutor amended the information to charge offenses which did not result in automatic adult court jurisdiction, Dalluge's case no longer qualified for that exception to the juvenile court's exclusive jurisdiction. Most importantly, because Dalluge was now charged with rape in the second degree, a class A felony, RCW 13.40.110 (1)(a) affirmatively required a decline hearing unless waived by the juvenile court , the parties, and their counsel. Thus, the trial court should have remanded the matter to the juvenile court for a decline hearing because the juvenile court was the only court that could have jurisdiction over Dalluge's case. Mora , 138 Wn.2d at 54 .
The State claims that the adult criminal court maintained jurisdiction over Dalluge, even after the information was amended, because Dalluge did not object to the adult criminal court's jurisdiction or request a hearing in juvenile court. The State argues that Dalluge waived his right to have his case decided in juvenile court by silence.«8»Yet this court has concluded that RCW 13.04.030 (1)(e)'s decline
«8»There is no constitutional right to be tried in juvenile court. Though juveniles have a right to procedural due process, they do not necessarily have a right to a decline hearing in every case. Juveniles have a right to a decline hearing only when the statutes authorize the juvenile court to exercise discretion to determine juvenile or adult court jurisdiction. State v. Salavea , 151 Wn.2d 133 , 140, 86 P.3d 125 (2004). Our use of the term "right" in this context does not suggest that juveniles enjoy a constitutional right to be tried in juvenile court.
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hearing requirement can be waived only by way of intentional deception. Sheppard , 73 Wn.2d at 739 ; see also Mendoza-Lopez , 105 Wn. App. at 388 -89; Anderson , 83 Wn. App. at 519 ; Nelson , 29 Wn. App. at 10 . The State points to no other circumstances that have been deemed to amount to waiver.
Similarly, the dissent claims that Mora established that juvenile jurisdiction is waived if a juvenile does not present a timely objection to improper adult jurisdiction. First and foremost, nothing in the dissent effectively counters the plain language of RCW 13.40.110 (1)(a), which affirmatively requires a decline hearing unless waived by the juvenile court. While the Mora court noted that "[o]ther Washington case law similarly holds that upon a timely challenge, [adult criminal court] jurisdiction may be terminated, even in the middle of proceedings," 138 Wn.2d at 53 , Mora was not a case that directly addressed the issue of waiver. Id . at 54 n.8. In addition, the Mora court did not go so far as to hold that the juvenile court loses its legislatively granted authority to rule on declination when a juvenile fails to raise an objection to adult criminal court jurisdiction. In fact, the Mora court emphasized the juvenile court's essential role in declination: "With the exception of those offenses set forth in RCW 13.04.030 , the Legislature intended that juvenile courts maintain not only exclusive original jurisdiction over all proceedings relating to juveniles, but also discretionary authority to determine whether to transfer jurisdiction to adult court ." Id . at 49 (emphasis added). We conclude that absent automatic decline based on the nature of the charges, this discretionary authority must be exercised, either by the juvenile court as the result of a decline hearing or by the adult criminal court in a substitute Dillenburg hearing. As noted above, this conclusion is not contradicted by Sheppard , in which this court acknowledged that a juvenile had waived his right to proceed in juvenile court by deception, but only after a court had
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confirmed, in the context of a Dillenburg hearing, that adult criminal court jurisdiction was proper. In sum, the relevant statutory language and this court's case law do not allow waiver of juvenile jurisdiction absent either a decline hearing in juvenile court or a substitute Dillenburg hearing.
[8]Therefore, the adult criminal court in this case erred when it failed to remand to the juvenile court for a decline hearing after the charges against Dalluge were amended. Absent the juvenile court's waiver of its exclusive jurisdiction, the adult criminal court did not have jurisdiction, i.e., it did not possess the power or authority to render a judgment in these proceedings. Because the judgment in this case was not "rendered by a court of competent jurisdiction," RCW 10.73.090 (1), Dalluge's personal restraint petition is not procedurally barred, regardless of the timing of its filing.
Remedy for the Trial Court's Failure to Remand
[9]This court has clearly concluded that once a prosecutor amends an information to charge offenses that do not result in automatic adult court jurisdiction, the adult criminal court must remand the matter to the juvenile court for a decline hearing. Mora , 138 Wn.2d at 54 . However, the parties disagree as to the appropriate remedy for the trial court's failure to remand for a decline hearing.
In Dillenburg , 70 Wn.2d at 333 , the petitioner filed for a writ of habeas corpus in superior court, arguing he was improperly tried in adult court. This court initially concluded that the petitioner had been improperly transferred to adult court and reversed for a new trial. Id . at 345-46. However, upon reconsideration, the court concluded that where the petitioner has demonstrated that a transfer from juvenile court was faulty, the proper remedy is a de novo hearing in superior court on whether declination of juvenile jurisdiction would have been appropriate.«9» Id . at 355. If
«9»If the petitioner were still a juvenile, then the hearing would be held in the juvenile division of superior court. Dillenburg , 70 Wn.2d at 355 -56.
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declination would have been appropriate, then the conviction stands. Id . Otherwise, the conviction is set aside and a new trial must occur in adult criminal court if the defendant has since turned 18. Id . at 356. Subsequently, Washington courts have consistently applied this remedy when lack of adult criminal jurisdiction is successfully argued on appeal. See Mendoza-Lopez , 105 Wn. App. at 390 ; Anderson , 83 Wn. App. at 522 .
The petitioner asserts that the Dillenburg remedy is no longer applicable, and the appropriate remedy is now outright dismissal, rather than remand for a Dillenburg hearing. Dalluge bases this argument on a post- Dillenburg case, in which the defendant claimed that the prosecution delayed filing charges until after his 18th birthday, resulting in a loss of juvenile court jurisdiction. See State v. Dixon , 114 Wn.2d 857 , 860, 792 P.2d 137 (1990) The Dixon court adopted a three-part test for determining whether preaccusatorial delay violated a defendant's right to due process where the result was a loss of juvenile jurisdiction, but the test is clearly inapplicable here since there is no claim of preaccusatorial delay. See id . Moreover, unlike the prosecutor in Dixon , the State in this case did not have any particularized duty to ensure that Dalluge's case was remanded after the amended information. See , e.g ., Mora , 138 Wn.2d at 54 (containing no discussion of a prosecutorial duty to insist on remand). Therefore, Dixon is inapposite. Most fundamentally, Dillenburg has not been overruled, and Washington courts continue to implement its remedy.
The dissent asserts that a Dillenburg hearing is not required here, claiming that there is no authority for the proposition that an automatic decline that was valid when it occurred is retroactively invalid as the result of a subsequent amendment to the charging instrument. Dissent at 795. Yet Mora seems to be exactly that case, and in Mora we remanded for further proceedings. 138 Wn.2d at 54 . Here too, we remand for further proceedings, specifically a Dillenburg hearing, the proper remedy under Washington case law. We conclude that where the defendant has since
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turned 18, the appropriate remedy for a trial court's failure to remand to juvenile court is remand to the adult criminal court for a de novo hearing on whether declination would have been appropriate. If declination would have been appropriate, then the conviction stands, but if not, the defendant is entitled to a new trial.
Ineffective Assistance of Appellate Counsel
Dalluge's appellate counsel neglected to argue that the trial court had erred by failing to remand for a decline hearing once the amended information was filed. Because the appellate court would have been required to remand to superior court for a Dillenburg hearing, Dalluge argues that he suffered prejudice as a result.
[10]The United States Supreme Court has recognized that a criminal defendant has a right to have effective assistance of counsel on his first appeal of right. Evitts v. Lucey , 469 U.S. 387, 396, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985). A criminal defendant's first opportunity to raise an ineffective assistance of appellate counsel claim is often on collateral review. See , e.g ., Maxfield , 133 Wn.2d 332 . This court has held that
[i]n order to prevail on an appellate ineffective assistance of counsel claim, petitioners must show that the legal issue which appellate counsel failed to raise had merit and that they were actually prejudiced by the failure to raise or adequately raise the issue.
Id . at 344. Failure to raise all possible nonfrivolous issues on appeal is not ineffective assistance, and the exercise of independent judgment in deciding what issues may lead to success is the heart of the appellate attorney's role. Lord , 123 Wn.2d at 314 . Yet if a petitioner can show that his appellate counsel failed to raise an issue with underlying merit, then the first prong of the ineffective assistance test is satisfied. Maxfield , 133 Wn.2d at 344 .
[11]In this case, it is important to note that Mora , 138 Wn.2d 43 , was decided in June 1999, before the decision in
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Dalluge's first appeal was filed in November 1999. Dalluge , 1999 WL 1079190, 1999 Wash. App. LEXIS 2011. Mora firmly established that after an amended charge destroys the automatic jurisdiction of adult criminal court, the case should be remanded to the juvenile court for a decline hearing. Had Dalluge's appellate counsel raised this argument, his case would have been remanded to the appropriate division of the superior court. Thus, Dalluge has established that his appellate counsel failed to raise a meritorious issue. See Maxfield , 133 Wn.2d at 344 .
[12]Under the second prong of the ineffective assistance of appellate counsel test, this court has required that the petitioner show that he was "actually prejudiced by the failure to raise or adequately raise the issue." Id .; see also Lord , 123 Wn.2d at 314 . In Smith v. Robbins , 528 U.S. 259, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000), the United States Supreme Court reiterated that the proper standard for evaluating claims of ineffective assistance of appellate counsel derives from the standard set forth in Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Smith , 528 U.S. at 285. The Court held that Robbins was required to demonstrate prejudice, "[t]hat is, he must show a reasonable probability that, but for his counsel's unreasonable failure to file a merits brief, he would have prevailed on his appeal ." Id . at 285-86 (emphasis added) (the Supreme Court's requirement that the defendant must show " 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " (emphasis added) (quoting Strickland , 466 U.S. at 694). As noted above, had appellate counsel raised the issue of the trial court's failure to remand for a decline hearing, Dalluge would have been entitled to a de novo Dillenburg hearing. Therefore, we conclude that Dalluge was prejudiced by his appellate counsel's ineffective assistance.
Although generally the remedy for ineffective assistance of appellate counsel is reinstatement of the appeal and remand, In re Personal Restraint of Frampton , 45 Wn. App.
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554, 563, 726 P.2d 486 (1986), Dalluge urges this court, in the interests of efficiency, to resolve the trial court error under the standard of review applicable upon direct appeal. See id . (recognizing resolution on the merits would be appropriate if the record were sufficient). Because no further information is needed, we conclude that the trial court indeed erred when it failed to remand for a decline hearing after the amended information was filed. Because Dalluge is now over 18, remedy for such error on direct appeal is remand to the adult criminal court for a de novo Dillenburg hearing. Because we remand to the superior court for a de novo Dillenburg hearing, we need not address the petitioner's remaining arguments.«10»
III
Conclusion
Dalluge's petition is not procedurally barred because the adult criminal court did not have jurisdiction over his case. We hold that the trial court erred in failing to remand for a decline hearing after the amended information destroyed its jurisdiction. Dalluge suffered prejudice resulting from ineffective assistance of appellate counsel because his appellate counsel failed to raise this lack of jurisdiction on direct appeal. The personal restraint petition is granted, the Court of Appeals is reversed, and this matter is re
«10»Dalluge also claims ineffective assistance of trial counsel based on his attorney's failure to request remand to juvenile court after the amended information was filed. Even if trial counsel's performance was ineffective, a question which we do not decide, any error is remedied by our remand to superior court. If the superior court determines that the juvenile court would likely have declined jurisdiction, then Dalluge did not suffer actual prejudice resulting from trial counsel's performance. If the superior court instead determines that the juvenile court would have retained jurisdiction, then Dalluge will receive a new trial, the same remedy he would receive if he prevailed in his claim of ineffective assistance of trial counsel.
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manded to superior court for a decline hearing consistent with the procedure set forth in Dillenburg .
ALEXANDER , C.J ., and SANDERS , CHAMBERS , OWENS , and FAIRHURST , JJ ., concur .
MADSEN , J.(dissenting) - Petitioner Amel Dalluge did not object to the superior court's exercise of authority over him in adult criminal proceedings following the State's amendment of the charges against him. Thus, although the amended information no longer alleged an offense encompassed by the automatic decline provisions of RCW 13.04.030 (1)(e)(v), Dalluge was properly tried in adult court because he waived his right to be treated as a juvenile. The majority's determination to the contrary is therefore incorrect as to both the substantive merits and the procedural bar of RCW 10.73.090 . Moreover, the majority's conclusion that a Dillenburg hearing is necessary to comply with procedural due process requirements is not warranted by its analysis or the authority on which it cites. Dillenburg v. Maxwell , 70 Wn.2d 331 , 413 P.2d 940, 422 P.2d 783 (1966). Accordingly, I dissent.
ANALYSIS
The juvenile court is not a separate constitutional court, but rather a division of superior court. State v. Werner , 129 Wn.2d 485 , 492, 918 P.2d 916 (1996). The legislature has vested the juvenile court with "exclusive original jurisdiction" over juvenile offenders, subject to certain exceptions. RCW 13.04.030 (1). The court has observed that the legislature "chose to 'distribute and assign a phase of the business of the superior court' and 'prescribe the mode of procedure by which the superior court shall initiate, process and apply the remedies made available' for juveniles." Werner , 129 Wn.2d at 492 -93 (quoting Dillenburg , 70 Wn.2d at 352 -53). These comments, pertaining to predecessor statutes, are still applicable. Id . The court has also noted that when referring to juvenile court jurisdiction, "jurisdiction" is used
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in a "limited sense." Sheppard v. Rhay , 73 Wn.2d 734 , 736, 440 P.2d 422 (1968). It is not, for example, like "subject matter jurisdiction," which cannot be waived. Juvenile court jurisdiction can be waived. E.g ., Sheppard , 73 Wn.2d 734 ; Nelson v. Seattle Mun. Court , 29 Wn. App. 7 , 627 P.2d 157 (1981).
Here, the issue is whether the adult court loses the authority to try a juvenile when he or she has been automatically subjected to adult criminal court jurisdiction because a serious violent offense has been charged, and the State thereafter amends the information to charge an offense within the juvenile court's jurisdiction. Nothing in the Basic Juvenile Court Act, chapter 13.04 RCW, prescribes that the adult criminal court loses jurisdiction in these circumstances.
The majority assumes, however, that the court held in State v. Mora , 138 Wn.2d 43 , 977 P.2d 564 (1999) that the adult criminal court inevitably loses its authority to render a judgment once the information is amended to charge only offenses not subject to the automatic decline provisions. Mora , however, simply does not stand for this proposition. Instead, Mora clearly contemplates the necessity of a timely objection.
In Mora , a 17-year-old was originally charged in adult court based on the date of birth he had given. At arraignment, defense counsel objected to adult court jurisdiction on the basis that Mora was actually 17 years old. Mora , 138 Wn.2d at 46 . On the day a hearing was scheduled to hear evidence on Mora's age, the prosecutor moved to amend the information to add a charge that subjected Mora to the automatic decline provisions of RCW 13.04.030 (1)(e)(v). The court allowed the amendment. Later, the prosecutor filed a second amended information that reduced the charged offenses; as amended, the information did not charge any offense within the automatic decline provisions of RCW 13.04.030 (1)(e)(v). Mora , 138 Wn.2d at 47 . Mora was tried as an adult. After he was found guilty, his counsel moved for an arrest of judgment, challenging the adult trial
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court's authority to render judgment. Id . The trial court denied the motion. Id .
This court reversed. The court found that the legislature intended that only certain crimes will trigger automatic decline, and that RCW 13.04.030 (1)(e)(v) nowhere suggests legislative intent that the offender's juvenile status is forever lost based on a prosecutor's charging decision. Mora , 138 Wn.2d at 51 -52. However, to obtain the adult court's reexamination of whether it has authority under RCW 13.04.030 (1) and transfer of the case to the juvenile court, a timely challenge is required. Mora , 138 Wn.2d at 53 . The court in Mora noted that "Washington case law . . . holds that upon a timely challenge , jurisdiction may be terminated, even in the middle of the proceedings, if the trial court lacks jurisdiction over the juvenile." Mora , 138 Wn.2d at 53 . The court made it clear that the defendant's right to be tried as a juvenile is subject to waiver if the right is not invoked upon a timely challenge. Mora , 138 Wn.2d at 53 , 54 n.8; see also Sheppard , 73 Wn.2d 734 (offender waived the right to be heard in juvenile court where he deliberately misrepresented his actual age, and his counsel did not raise the issue or reveal his age at trial); Nelson , 29 Wn. App. 7 (claim of the right to be treated as a juvenile waived where the offender deliberately misrepresented her age throughout the trial and only challenged adult court jurisdiction when faced with revocation of her probation).
Here, there was no timely objection to adult court jurisdiction, and Dalluge did not assert a right to be treated as a juvenile. Accordingly, Dalluge waived any challenge to the authority of the adult criminal court.
The majority maintains, however, that waiver can be found only in cases where the defendant has deliberately misrepresented his or her age. Majority at 781-82, 782. However, in the only case where this court held that intentional misrepresentation of age constitutes waiver, the court never indicated that waiver cannot be found in other circumstances. Sheppard , 73 Wn.2d 734 . The fact that waiver is found in age misrepresentation cases instead
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demonstrates that the statutory right to be treated as a juvenile can be waived, and nothing in the statute itself limits the circumstances where waiver can occur. In addition, the court in Sheppard found waiver resulted from the defendant's own willful acts and from counsel's failure to raise the issue. Sheppard , 73 Wn.2d at 739 . This suggests that failure to object to trial in adult court is a basis for finding waiver. Finally, as explained, Mora instructs that waiver can be found where there is no timely challenge.
The majority also concludes that waiver cannot be found unless the juvenile court itself also waives juvenile court jurisdiction. Majority at 780 n.3, 782-83. The majority is confusing use of the term in RCW 13.40.110 (1), under which a decline hearing must be held unless all parties, their counsel, and the juvenile court waives the decline hearing, and the issue here, a juvenile's waiver through the failure to timely object to the adult court's continued jurisdiction following automatic decline. Here, juvenile court jurisdiction had already been declined as mandated by law, and there is no question of the juvenile court itself waiving a decline hearing. Nothing in the statute or the case law requires that the juvenile court must agree under RCW 13.40.110 (1) to waiver in order for the juvenile to waive the right to a decline hearing through failure to timely object once the adult court has obtained jurisdiction under the automatic decline provisions, and the information is thereafter amended to charge a crime not coming within those decline provisions.
I would hold that Dalluge waived his right to be treated as a juvenile.
Next, in response to the State's argument that this personal restraint petition is procedurally barred by RCW 10.73.090 , the majority concludes that Dalluge's judgment and sentence is invalid on its face, and therefore the time bar does not apply. As explained, however, the adult court did not lack jurisdiction. The question therefore remains whether the personal restraint petition is procedurally time barred, a question that is beyond this dissent. I note,
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however, that the majority never explains why the absence of juvenile court jurisdiction, i.e., "jurisdiction" only in a "limited sense" and "jurisdiction" that can be waived, is the kind of jurisdictional defect that renders a judgment and sentence invalid on its face for purposes of RCW 10.73.090 .
Finally, assuming the adult court lacked authority to try this case, the majority's choice of remedy is not justified by Dillenburg , 70 Wn.2d 331 . In Dillenburg the petitioner was transferred to adult court following a decline decision made by a probation officer without a formal hearing. Dillenburg , 70 Wn.2d at 334 -35. The petitioner pleaded guilty. Following his conviction, he filed a petition for a writ of habeas corpus claiming, among other things, that the order surrendering jurisdiction of the juvenile court was void because it was not signed by a judge of the superior court. Dillenburg , 70 Wn.2d at 333 . This court relied on Kent v. United States , 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966), in which the United States Supreme Court held that procedural due process requires, before an offender may be transferred to adult court, that a judicial hearing be held to determine whether the juvenile court's jurisdiction should be declined. Dillenburg , 70 Wn.2d at 344 -45 (quoting Kent , 383 U.S. at 552-54). The court in Dillenburg determined that the juvenile probation officer lacked authority to perform the function of a judge and held the transfer void because there was no valid declination hearing. Dillenburg , 70 Wn.2d at 342 -45. On reconsideration, the court held that the due process requirement is satisfied by a de novo hearing to determine the propriety of the transfer to adult court. Dillenburg , 70 Wn.2d at 345 . Thus, the requirement of a Dillenburg hearing is based on procedural due process requirements.
Here, however, there is no procedural due process defect such as occurred in Dillenburg . There was a valid declination before Dalluge was transferred to adult criminal court, albeit pursuant to the automatic declination provisions of RCW 13.04.030 (1)(e)(v). The statutory automatic declination procedure does not violate a juvenile's procedural due
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process rights. In re Boot , 130 Wn.2d 553 , 570-71, 925 P.2d 964 (1996). For procedural due process purposes, there is no difference between a transfer following a declination hearing and a transfer as a result of the automatic declination statute. The majority presents no authority establishing any difference and no authority for the proposition that an automatic decline that was valid when it occurred is retroactively invalid as a result of a subsequent amendment to the charging instrument. Accordingly, the majority's result is not justified by its analysis.
CONCLUSION
Dalluge is not entitled to relief because he waived his right to be treated as a juvenile by failing to make a timely objection to his trial in adult criminal court. His personal restraint petition should be dismissed.
I respectfully dissent.
JOHNSON and IRELAND , JJ ., concur with MADSEN , J .
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No. 72485-7. En Banc.]
Argued November 21, 2002. Decided November 10, 2004.
In the Matter of the Personal Restraint of CHRISTOPHER A. ORANGE , Petitioner .
[1] Personal Restraint - Scope - Constitutional Error - Prejudice - In General. A personal restraint petitioner claiming constitutional error must show that the error was made and that the error worked to the petitioner's actual and substantial prejudice. The nature of the error may give rise to a conclusive presumption of prejudice. Where the presumption does not arise, the petitioner must prove prejudice by a preponderance of the evidence. Constitutional error that is per se prejudicial on direct appeal will not necessarily be presumed prejudicial on collateral review.
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[2] Criminal Law - Trial - Right to Public Trial - Scope - Juror Selection. The public trial guaranty of the Sixth Amendment and Const. art. I, § 22 extends to the process of juror selection.
[3] Criminal Law - Trial - Right to Public Trial - Closure - Factors. While the constitutional right to a public trial is not absolute, trial should not be closed except under the most unusual circumstances and only after the trial court has weighed the competing interests according to the following five guidelines: (1) the proponent of closure must make some showing of a compelling interest, and where that need is based on a right other than the defendant's right to a fair trial, the proponent must show a serious and imminent threat to that right; (2) anyone present when the closure motion is made must be given an opportunity to object to the closure; (3) the proposed method for 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 proponent of closure and the public; and (5) the closure order, if entered, must be no broader in its application or duration than necessary to serve its purpose. A criminal defendant's right to a public trial may be impeded only if there is an overriding interest based on findings that closure is essential to preserve higher values and if the closure order is narrowly tailored to serve that interest. The interest must be articulated along with findings specific enough for a reviewing court to determine whether the closure order was properly entered.
[4] Jury - Selection - Closed to Public - Validity - Factors. A permanent, full closure of voir dire in a criminal case effects, at a minimum, a temporary, full closure of trial, the validity of which is determined by application of the five guidelines for protecting the constitutional right to an open trial.
[5] Jury - Selection - Closed to Public - Determination - Compelling Interest - Necessity. When the trial court is the proponent of closure of a criminal trial, the court has an affirmative duty to identify a compelling interest that closure is essential to protect, and unless the purpose of closure is to protect the defendant's right to a fair trial, the court must identify, with sufficient particularity, a serious and imminent threat to the declared compelling interest. Where courtroom security is the declared interest, the court must identify with sufficient particularity a serious and imminent threat to the safety of the defendant or some other trial participant.[6] Jury - Selection - Closed to Public - Validity - Assemblage of Large Jury Pool. A trial court's interest in keeping a large jury pool together during jury selection in a criminal case does not justify a blanket order excluding all other persons other than parties and counsel from the courtroom. A reasonably tailored order would, at a minimum, allow seating for the defendant's family and members of
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the press and provide that, as prospective jurors were excused, additional spectators could be admitted to take the available seats or standing positions. The exclusion of all persons, including members of the defendant's family and representatives of the press, is not a narrowly tailored means of protecting the interest of providing sufficient space for the entire jury pool.
[7] Criminal Law - Trial - Right to Public Trial - Violation - Failure To Follow Test. A criminal defendant's Const. art. I, § 22 right to a public trial is violated if the trial court orders closure of the trial without following the five-step test for establishing a valid justification for closure.
[8] Criminal Law - Right to Counsel - Effective Assistance of Counsel - Failure To Object to Closure of Trial. Where a trial court closes a criminal trial in violation of the defendant's Const. art. I, § 22 right to a public trial, appellate counsel's failure to raise the constitutional violation on appeal is both deficient and prejudicial, constituting ineffective assistance of counsel warranting vacation of the defendant's conviction upon collateral review. Appellate counsel's failure to raise the courtroom closure issue on appeal cannot be viewed as the product of "strategic" or "tactical" thinking and deprives the defendant of the opportunity to have the constitutional error deemed per se prejudicial.
[9] Criminal Law - Former Jeopardy - Constitutional Provisions - State and Federal. Const. art. I, § 9 provides the same protection against double jeopardy as the Fifth Amendment (U.S. Const. amend. V).
[10] Criminal Law - Former Jeopardy - Multiple Punishments - In General. The double jeopardy protections of the Fifth Amendment and Const. art. I, § 9 protect against multiple punishments for the same offense.
[11] Criminal Law - Former Jeopardy - Multiple Convictions - Same Offense - What Constitutes - Test. Whether a criminal defendant may be convicted of and punished for violating separate criminal statutes for the same criminal act or transaction without placing the defendant in double jeopardy depends on whether, in light of legislative intent, the charged crimes constitute the same offense. Where the applicable statutes do not expressly disclose legislative intent, a court applies rules of statutory construction to determine whether the offenses have the same elements. Under the same elements test, the offenses are the "same" for double jeopardy purposes if they are identical in law and in fact. Two offenses are identical in law and in fact if proof of one would be sufficient to sustain a conviction of the other. The offenses are not the "same" if each requires proof of a fact not required by the other.[12] Criminal Law - Former Jeopardy - Multiple Convictions - Same Offense - What Constitutes - Attempted Offense -
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"Substantial Step" Element - Factual Inquiry. When determining whether an attempted offense and a separate completed offense constitute the "same" offense for double jeopardy purposes, the "substantial step" element of the attempted offense must be considered in light of the facts of the particular case and cannot be treated merely as a generic element when comparing elements with the completed offense. The substantial step element is a placeholder in the attempt statute that takes on meaning only from the facts of each case.
[13] Criminal Law - Former Jeopardy - Multiple Convictions - Same Offense - Attempted First Degree Murder and First Degree Assault - Same Acts and Harms. Attempted first degree murder and first degree assault perpetrated against the same victim by means of the same act or use of the same instrumentality constitute the "same" offense for double jeopardy purposes.
[14] Criminal Law - Former Jeopardy - Multiple Convictions - Same Offense - Attempted First Degree Murder and First Degree Murder - Different Acts and Victims. Attempted first degree murder and first degree murder perpetrated against two separate victims by shooting one and, after re-aiming, shooting the other do not constitute the same criminal conduct for double jeopardy purposes.
[15] Criminal Law - Punishment - Multiple Convictions - Concurrent or Consecutive Sentences - "Separate and Distinct Criminal Conduct" - Different Victims. Two or more crimes arise from separate and distinct criminal conduct for which the sentences must be served consecutively to each other under former RCW 9.94A.400 (1)(b) (1990) ( recodified as RCW 9.94A.589 (1) (b)) if each involved a different victim.
MADSEN and BRIDGE , JJ., concur by separate opinion; IRELAND , J., dissents by separate opinion; FAIRHURST , J., did not participate in the disposition of this case.
Nature of Action: An offender convicted of first degree murder, attempted first degree murder, and first degree assault sought relief from personal restraint on claims that the trial court improperly closed the courtroom during voir dire, that the attempted murder and assault convictions involving the same victim constituted double jeopardy, and that the murder and attempted murder convictions involving different victims constituted double jeopardy or, if not, that the imposition of consecutive sentences for the offenses was improper.
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Court of Appeals: The court denied the petition by an unpublished opinion noted at 110 Wn. App. 1086 (2002).
Supreme Court: Holding that voir dire was improperly closed to the public, that the remedy is a new trial, that the petitioner was placed in double jeopardy by being convicted of both attempted murder and assault of the same victim, that the petitioner was not placed in double jeopardy by being convicted of murder and attempted murder of different victims, and that the trial court had the authority to impose consecutive sentences for the murder and attempted murder convictions, the court reverses the decision of the Court of Appeals and grants the petition.
Sheryl G. McCloud , for petitioner .
Steven M. Lowe , Prosecuting Attorney, and Frank W. Jenny II , Deputy, and James F. Bell (of Roach & Petersen, L.L.P. ), for respondent .
Marshall J. Nelson , Michele L. Earl-Hubbard , and Jeffrey L. Fisher on behalf of Allied Daily Newspapers of Washington, Cowles Publishing Company, Seattle Post-Intelligencer, Tacoma News Tribune, The Daily Herald Company, and The Seattle Times Company, amici curiae.
OWENS , J . - In this personal restraint petition, we are asked to decide whether the trial court's closure of the courtroom during voir dire violated defendant Christopher A. Orange's constitutional right to a public trial and, if so, whether the error, raised on collateral review, necessitates remand for a new trial. We also must decide whether Orange's convictions for first degree attempted murder and first degree assault of the same victim, Marcel Walker, violated the double jeopardy clauses of the state and federal constitutions. Additionally, as to Orange's convictions for first degree murder of Brandy McClure and first degree
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attempted murder of Walker, we must determine whether double jeopardy was violated and, if it was not, whether the imposition of consecutive sentences for those crimes was improper.
The Court of Appeals rejected Orange's arguments on all three issues and denied his personal restraint petition. We reverse on two of the three questions presented. First, we conclude that the trial court violated Orange's constitutional right to a public trial. Because the error would have been per se prejudicial on appeal, the failure of Orange's appellate counsel to raise the issue below constituted ineffective assistance of counsel. The relief for this error is remand for a new trial. Although a new trial will undoubtedly place on the affected community an extremely difficult burden, a burden that will be particularly painful for the families and friends of the victims of the crimes charged in this case, our duty under the constitution is to ensure that, absent a closure order narrowly drawn to protect a clearly identified compelling interest, a trial court may not exclude the public or press from any stage of a criminal trial; in this case, neither the size of the courtroom nor a general concern for security provided an adequate basis for compromising the fundamental tenet "that an accused is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged ." In re Oliver , 333 U.S. 257, 271-72, 68 S. Ct. 499, 92 L. Ed. 2d 682 (1948) (emphasis added). Second, with respect to Orange's convictions for first degree attempted murder and first degree assault of Walker, we hold that the constitutional prohibition against double jeopardy was violated, necessitating dismissal of one of the charges. Finally, for purposes of guidance on retrial, we hold that Orange's convictions for first degree murder of McClure and first degree attempted murder of Walker did not violate double jeopardy, nor was the trial court's imposition of consecutive sentences for those crimes improper.
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FACTS
On October 6, 1994, Orange drove into an Exxon station in Pasco and fired at least 11 shots, emptying his handgun. One bullet struck and killed Brandy McClure, another struck and wounded Marcel Walker, and a third pierced the clothing of Robyn Willer. The State charged Orange with 11 criminal counts: first degree murder of McClure, first degree attempted murder of Walker, first degree assault of Walker and Willer, and reckless endangerment of Willer and six others in the vicinity of the shooting.
At the opening of trial on April 26, 1995, the court discussed with counsel the method for conducting voir dire. Acknowledging that the prospective jurors had completed a lengthy questionnaire, the trial judge explained that they would be interviewed in chambers on eight of the questions - those asking them about past crimes, pretrial publicity, and familiarity with the Orange family's reputation. As the trial judge told counsel, "The rest of [voir dire] you can conduct in open court." Verbatim Report of Proceedings (Trial) (VRP) at 2. Encouraging counsel to use the answers in the questionnaires "as a springboard for further inquiry," the judge warned that he would interrupt counsel if either merely asked jurors the same questions included in the questionnaires. Id . at 5. With that, the following discussion ensued:
[THE COURT:] We've been talking - or been asked to discuss the family members of the Oranges being here during the selection of the jury. My only difficulty I have here with that is that this entire courtroom will be filled with the venire, and I don't think I have any place, until we get the jury, for the family to be present, Mr. Egan.
MR. EGAN [defense counsel]: Would it be possible, Your Honor, to have the family seated at the bench alongside the wall of the courtroom.
THE COURT: No or not in my lap either.
MR. EGAN: Would it be all right if they took the back. The family has a significant interest.
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THE COURT: I understand it. The trouble with it is the limitations of space. Number one, it would be impossible for me to separate the family from the jurors. Number two, I probably wouldn't even have a place for the family to sit as we select the jury. I understand their concerns and this three-week trial they will be here every inch of the way. But in this process, I just have to play it pretty tough, and I'm going to ask the family - they will have to sit outside.
MR. EGAN: As the process we[nd]s on, Your Honor, and as individual jurors may be excused for cause and space becomes available, will they then be allowed, if there is a bench that can be available to them.
THE COURT: We can reexplore this issue. You bet.
MR. COX [deputy prosecutor]: Your Honor, along the same lines the McClure family has also asked to be present during the jury selection. I have told them there may not be room for them. I'm sure if the Orange family is going to be present for part of the jury selection the McClure family will also want to be in here. And if the Orange family is entitled to it the McClure family -
THE COURT: Yes, it adds to the problem. I am ruling no family members, no spectators will be permitted in this courtroom during the selection of the jury because of the limitation of space, security, etcetera [sic]. That's my ruling .
Id . at 6-7 (emphasis added). After attending to further housekeeping matters, the trial judge returned to the issue of courtroom space:
All right. Gentlemen, I think this was worthwhile and the jury will be here. The family, of course, they [i.e., the prospective jurors] will have to utilize this area, and I certainly apologize that we don't have the facilities for all of the families who are definitely interested, concerned to be here throughout the entire trial, but when the jury is selected, well, we will have [a] lot of room and evidence will be produced at that time, and you may attend.
Id . at 41. The court made no written findings on the issue of courtroom space.
Voir dire began after the midmorning recess on Wednesday, April 26, 1995, continued on Thursday and Friday, and
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concluded on Monday, May 1. Closing arguments were delivered two weeks later on May 15. Returning its verdict the following day, the jury found Orange guilty on all but the last three counts of reckless endangerment. Orange was sentenced on the eight guilty verdicts on July 11, 1995. The court ordered that his sentences for first degree murder of McClure, first degree attempted murder of Walker, and first degree assault of Willer be served consecutively. The court further provided that Orange's sentence for first degree assault of Walker would be served concurrently with his sentence for first degree attempted murder of Walker.
Orange appealed. The Court of Appeals affirmed his convictions in an unpublished decision. State v. Orange , noted at 97 Wn. App. 1092, 1999 WL 1044204, 1999 Wash. App. LEXIS 3200 (finding no error in trial court's exclusion of evidence of victim's reputation for bad acts and declining to order new trial based on deficient self-defense instruction requested by defendant), review denied , 140 Wn.2d 1015 (2000).
Orange filed a personal restraint petition on February 21, 2001. The Court of Appeals denied the petition in an unpublished decision. In re Pers. Restraint of Orange , noted at 110 Wn. App. 1086, 2002 WL 508351, 2002 Wash. App. LEXIS 1667. We granted Orange's motion for discretionary review. After hearing oral argument on November 21, 2002, we ordered a reference hearing to determine the effect of the trial court's ruling on courtroom closure. The record and findings from that hearing, held before Franklin County Superior Court Judge Robert G. Swisher, were received in February 2003, and supplemental briefing was completed two months later.
ISSUES
(1) Did the trial court's closure of the courtroom during voir dire violate Orange's constitutional right to a public trial? If so, is the remedy for the error remand for a new trial?
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(2) Did Orange's convictions for first degree attempted murder of Walker and first degree assault of Walker violate double jeopardy?
(3) Did Orange's convictions for first degree murder of McClure and first degree attempted murder of Walker violate double jeopardy? If not, was the imposition of consecutive sentences for those crimes improper?
ANALYSIS
[1] Standard of Review . In his personal restraint petition, Orange claims constitutional error. To obtain relief through a personal restraint petition, a petitioner claiming constitutional error must show that such an error was made and that it "worked to his actual and substantial prejudice." In re Pers. Restraint of Lile , 100 Wn.2d 224 , 225, 668 P.2d 581 (1983). The petitioner bears the burden of establishing prejudice by a preponderance of the evidence, but that burden "may be waived where the error gives rise to a conclusive presumption of prejudice." In re Pers. Restraint of St. Pierre , 118 Wn.2d 321 , 328, 823 P.2d 492 (1992). The St. Pierre court explicitly rejected, however, the suggestion made in prior dicta that constitutional errors that are per se prejudicial on direct appeal "will also be presumed prejudicial for the purposes of personal restraint petitions." Id .
[2, 3] Closure of Courtroom During Voir Dire . Article I, section 22 of the Washington State Constitution guarantees that "[i]n criminal prosecutions the accused shall have the right . . . to have a speedy public trial." See also U.S. CONST . amend. VI (providing that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial"). The guaranty of open criminal proceedings extends to "[t]he process of juror selection," which "is itself a matter of importance, not simply to the adversaries but to the criminal justice system." Press-Enter. Co. v. Superior Court , 464 U.S. 501, 505, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984). As this court has stated, "[a]lthough the public trial right
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may not be absolute, protection of this basic constitutional right clearly calls for a trial court to resist a closure motion except under the most unusual circumstances ." State v. Bone-Club , 128 Wn.2d 254 , 259, 906 P.2d 325 (1995) (emphasis added). In Bone-Club , the defendant argued that "the temporary, full closure of his pretrial suppression hearing during the testimony of the undercover police officer violated his [public trial right]." Id . at 257. We agreed and unanimously held that, to protect a defendant's article I, section 22 constitutional right to a public trial, a trial court faced with a closure request must apply the "strict, well-defined standard" previously prescribed to protect the public's article I, section 10 right to open proceedings. Id . at 258; WASH. CONST . art. I, § 10 (providing that "[j]ustice in all cases shall be administered openly"); see Federated Publ'ns, Inc. v. Kurtz , 94 Wn.2d 51 , 62-64, 615 P.2d 440 (1980) (balancing defendant's and public's competing constitutional interests by applying five "workable guidelines" drawn from "principles suggested" in Gannett Co. v. DePasquale , 443 U.S. 368, 400-03, 99 S. Ct. 2898, 61 L. Ed. 2d 608 (1979) (Powell, J., concurring)); Seattle Times Co. v. Ishikawa , 97 Wn.2d 30 , 37-39, 640 P.2d 716 (1982) (interpreting Kurtz guidelines and concluding that trial court's denial of access to hearing and records violated standard); Allied Daily Newspapers of Wash. v. Eikenberry , 121 Wn.2d 205 , 210-12, 848 P.2d 1258 (1993) (declaring unconstitutional a statute precluding compliance with Ishikawa guidelines); see also Dreiling v. Jain , 151 Wn.2d 900 , 93 P.3d 861 (2004) (applying Ishikawa guidelines to sealing of materials filed in support of motion to terminate shareholders' derivative suit).
As the Bone-Club court acknowledged, its decision to apply the closure test used in the prior article I, section 10 decisions "mirror[ed]" the United States Supreme Court's decision in Waller v. Georgia , 467 U.S. 39, 45-47, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984). 128 Wn.2d at 259 -60. There, basing its analysis of a defendant's Sixth Amendment right to a public trial on prior decisions addressing the public's
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First Amendment right to open hearings, the Court recalled its previously articulated First Amendment test: " 'The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.' " Waller , 467 U.S. at 45 (quoting Press-Enter ., 464 U.S. at 510). The Court determined that "the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure." 467 U.S. at 48 (emphasis added). Thus, the Waller test encompasses the proponent's "reason" for seeking the closure (the protection of an overriding interest), the "scope" of the closure (the narrow tailoring of the order), and "three procedural requirements" (holding a hearing, making specific factual findings, and considering reasonable alternatives). United States v. Sherlock , 962 F.2d 1349, 1357-59 (9th Cir. 1992).
The five guidelines developed in our article I, section 10 cases and embraced in Bone-Club comply with the Waller requirements. The Bone-Club decision quoted the Eikenberry court's statement of the guidelines:
"1. The proponent of closure . . . must make some showing [of a compelling interest], and where that need is based on a right other than an accused's right to a fair trial, the proponent must show a 'serious and imminent threat' to that right.
2. Anyone present when the closure motion is made must be given an opportunity to object to the closure.
3. The proposed method for 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 proponent of closure and the public.
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5. The order must be no broader in its application or duration than necessary to serve its purpose."
128 Wn.2d at 258 -59 (emphasis added) (alteration in original) (quoting Eikenberry , 121 Wn.2d at 210 -11). The first Bone-Club guideline parallels the Waller requirement that the proponent must articulate an overriding interest; the third and fifth guidelines require, as in Waller , a narrow tailoring of the closure order to permit only the most minimal encroachment upon the defendant's public trial right; and the second guideline makes explicit the implicit Waller requirement that a hearing be held. The fourth Bone-Club guideline includes the remaining two procedural requirements from Waller , that the trial court must consider reasonable alternatives and make sufficiently specific factual findings. The Bone-Club court noted this court's prior indication that "a trial court's weighing of the competing interests should include entering specific findings ." Id . at 260 (emphasis added) (citing Ishikawa , 97 Wn.2d at 3 [8]). Indeed, as amplified in Ishikawa , the fourth guideline requires the trial court to weigh the competing constitutional interests, consider the suggested alternatives to closure, and record the results of those deliberations "in its findings and conclusions, which should be as specific as possible rather than conclusory." Ishikawa , 97 Wn.2d at 38 .
[4]Before measuring the trial court's order in the present case against "the five-step closure test," we must determine whether the closure that was ordered in the present case is distinguishable in any meaningful way from the type of closure at issue in that case. Bone-Club , 128 Wn.2d at 261 . The Bone-Club court defined the closure as a "temporary, full closure of [a] pretrial suppression hearing" - "temporary" because it was only for the testimony of one witness, "full" because all spectators were excluded. Id . at 257. Looking solely at the transcript of the trial court's ruling in the present case, the court ordered a permanent, full closure of voir dire: "I am ruling no family members, no spectators will be permitted into this courtroom during the selection of the jury because of the limitation of space,
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security, etcetera [sic]. That's my ruling." VRP at 7. Because that ruling was announced after Orange's attorney and the prosecutor asked about access for family members as seats came available, the court appeared to reject the notion of revisiting the ruling. Even if the trial judge had intended to convey "that as the voir dire process continued, the issue of the parents in the courtroom could be reexplored," the mere possibility of later modifying the ruling did not alter the nature of the closing that the trial court had in fact ordered. Findings of Fact on Reference Hearing (FF) 3.
We also note that, were we to define the nature of the closure not by the presumptive effect of the plain language of the ruling itself but by additional facts about the closure educed at the posttrial evidentiary hearing, the closure in the present case was, at the very least, the same type of closure at issue in Bone-Club , a temporary, full closure. The findings from the reference hearing established that the effect of the trial court's closure ruling was a full closure of voir dire from the beginning of voir dire after the midmorning recess on Wednesday, April 26, 1995, through the following morning. For that period of time, which amounted to more than half of the total time spent on voir dire, no friends or family members, no reporters, and no other spectators were in the courtroom. In sum, by the plain language of its ruling, the court ordered a permanent , full closure of voir dire, and that ruling effected, at a minimum, a temporary , full closure, the precise type of closure to which the Bone-Club court applied the five, well-settled guidelines.
As a final point on the nature of the closure at issue here, we must recognize that the trial court's ruling unequivocally excluded the defendant's friends and family from the courtroom during voir dire. At the outset of the trial judge's colloquy with counsel, the trial judge acknowledged that the purpose was "to discuss the family members of the Oranges being here during the selection of the jury." VRP at 6. Orange's counsel asserted that the defendant's family had "a significant interest," and he suggested two possible
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places in the courtroom where the family could be seated. Id . Concluding that " the family . . . will have to sit outside ," the trial court stated that it was "ruling no family members . . . will be permitted into this courtroom during the selection of the jury ." Id . at 7 (emphasis added). By its plain language, the ruling thus imposed a permanent exclusion. Because the State's briefing repeatedly confirmed that the defendant's family members were excluded from voir dire for lack of courtroom space, the more particular inquiry in the posttrial evidentiary hearing was superfluous. See State's Resp. to Pers. Restraint Pet. at 19; Suppl. Br. of Resp't at 4; State's Answer to Br. of Amicus Curiae at 5. Nevertheless, those findings indisputably established that the defendant's family and friends were excluded for at least the first two days of voir dire (again, for more than half of the jury selection process); moreover, one finding specifically stated that, "[o]n either April 26th or April 27th, a family member and friend of the defendant [were] turned away from entering the courtroom by a[ ] uniformed guard." FF 17. Because Orange's parents "had a strong desire to sit through the entire trial," they and a friend occupied the benches outside the courtroom door, where "the entire jury panel could see [them] anytime [the prospective jurors] entered or left the courtroom." FF 14.
[5]We turn now to a consideration of the Bone-Club guidelines, "the five criteria . . . mandated to protect a defendant's right to [a] public trial." 128 Wn.2d at 259 (emphasis added). Under the first guideline, the trial court, as the proponent of closure, was required to identify a compelling interest that the closure was essential to protect. Additionally, unless the purpose of the closure was the protection of Orange's right to a fair trial, the trial court was required to show a serious and imminent threat to that compelling interest. At the time of his ruling, the trial judge identified two reasons for ordering the closure: "because of the limitation of space, security, etcetera [sic]." VRP at 7. Inherent in the first reason, "the limitation of space," was the trial judge's interest in accommodating as a single
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group the entire 98-member jury pool. The court did not explain why he was compelled to call 98 prospective jurors (as opposed to 90, for example, which would have allowed seating for some family members, other spectators, and the press) or why the venire could not have been divided. See In re Closure of Jury Voir Dire , 204 Mich. App. 592, 596, 516 N.W.2d 514 (1994) (holding closure of voir dire unconstitutional where court "gave no reason why every member of the jury pool had to be in the courtroom at one time").
The second reason for closure, "security," received no discussion at the time of the ruling. While the trial judge acknowledged the problem of "separat[ing] the family from the jurors," this observation, on its face, appeared to be related more to courtroom management and convenience than to any particular concerns for security. VRP at 6, 7. We recognize that the initial factual finding from the reference hearing commented generally on the security concerns: "The crimes the defendant was charged with were thought to be gang related. Because of this, there was great concern for the safety and security of participants in the courtroom during the trial. There was concern that the defendant himself could be the target for retaliation by persons associated with a gang." FF 1. However, consistent with our observation in Bone-Club that "determination of a compelling interest [is] the affirmative duty of the trial court, not the court of appeals," 128 Wn.2d at 261 , we emphasize that it was the trial court's affirmative duty, not the duty of the superior court in a reference hearing more than eight years later, to identify the compelling interest justifying the encroachment on Orange's constitutional right to a public trial. The trial court did not fulfill that duty. Moreover, even if the trial court had made the observations contained in the first factual finding from the reference hearing, we could not conclude that the trial court had identified with sufficient particularity a serious and imminent threat to the safety of the defendant or any other trial participants.
[6]Nor did the trial court comply with the third and fifth Bone-Club guidelines, which provide that a closure order
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must be no broader in scope and duration than is necessary to protect the threatened interests. Even if we were to view as a compelling interest the trial court's desire to keep the large jury pool intact, the trial court's ruling was not narrowly tailored to preserve that aim. A reasonably tailored order would have, at a minimum, allowed seating for the defendant's family, as well as members of the press, and would have clearly and specifically provided that, as prospective jurors were excused from the crowded courtroom, additional spectators could be admitted to take the available seats or standing positions. See Watters v. State , 328 Md. 38, 45, 612 A.2d 1288 (1992) (holding that, even if "a legitimate interest in preventing overcrowding" could have been established, "the exclusion of all persons," including members of the petitioner's family and representatives of the press, was not a "narrowly tailored means of protecting that interest"). Indeed, in the present case, the trial judge's oral ruling was so broadly stated that the attorneys assumed that the judge had decided to close the courtroom for the duration of voir dire to all persons not in the jury pool. Similarly, we cannot conclude that the closure order was narrowly tailored to protect the trial participants from violence, since the trial court issued a blanket closure and identified no particularized, credible threat.
Of the procedural requirements, only the second Bone-Club guideline was met. The trial court satisfied the hearing requirement by giving those present an opportunity to respond to his proposed courtroom closure. The components of the fourth guideline were not satisfied. The trial court gave little more than passing consideration to alternatives to full closure, and although the court expressed some "understand[ing of the family members'] concerns," that acknowledgment was entirely inadequate to satisfy "the weighing procedure" mandated in Bone-Club . VRP at 6; 128 Wn.2d at 261 . In the absence of a consideration of alternatives and a weighing of interests, the court, understandably, could not and did not "enter[ ] specific findings." Id . at 260. Plainly, the record in this case "lacks any hint the trial court
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considered Defendant's public trial right, much less engaged in the detailed review required to protect that right." Id . at 260-61.
[7]In light of the foregoing analysis, we adopt verbatim the holding in Bone-Club : "We hold the trial court's failure to follow the five-step closure test . . . violated Defendant's right to a public trial under section 22."«1»Echoing the conclusions of Maryland's highest court, we emphasize that, "[a]long with the general detriments associated with a closed trial, notably the inability of the public to judge for itself and to reinforce by its presence the fairness of the process , the present case demonstrates other kinds of harms: the inability of the defendant's family to contribute their knowledge or insight to the jury selection and the inability of the venirepersons to see the interested individuals ." Watters , 328 Md. at 48 (emphasis added). As a result of the unconstitutional courtroom closure in the present case, what the prospective jurors saw, as they entered and exited the courtroom during at least the first two days of voir dire, was not the participation of the defendant's family members in the jury selection process, but their conspicuous exclusion from it. The vigil of Orange's parents outside the closed courtroom doors may have been especially suggestive here, given that prospective jurors were questioned in chambers on their knowledge of the Orange family's reputation in the community.
Before we address the proper remedy for the infringement of Orange's public trial right, some misconceptions in the concurrence warrant attention. First, observing that, "[w]hen applying the five-part test . . . a court should not lose sight of the constitutional issue itself - whether a defendant's rights protected by the open court guaranty have been abridged," the concurrence misses the point that to apply the Waller and Bone-Club guidelines is, in fact, to
«1»128 Wn.2d at 261 . The preceding sentence in Bone-Club noted the absence of "a trial court record showing any consideration of Defendant's public trial right." Id . Notably, the Bone-Club court did not remand the matter to the superior court for the post hoc development of a more extensive record.
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focus squarely on the protection of the public trial right. Concurrence at 822. Second, claiming that, prior to applying the constitutional guidelines, a reviewing court must determine "what actually occurred in response to the ruling," the concurrence imposes on a defendant seeking review of a closure order the threshold burden of establishing that the order was carried out. Id . at 823. The concurrence incorrectly claims that State v. Gaines , 144 Wash. 446 , 258 P. 508 (1927), mandates this hurdle. But Gaines was decided more than 50 years before the United States Supreme Court decided Press-Enterprises and Waller and more than 60 years before this court applied the constitutional guidelines to assess defendant Bone-Club's claimed violation of his right to a public trial. In fact, the two questions that the Gaines court had to answer - was there a closure order,«2»and if so, was it followed? - would not have arisen had the trial court in Gaines had the prescience to follow the Bone-Club guidelines. The guidelines require not simply an order, but a narrowly tailored order issued following a hearing on the competing interests of those advocating and opposing closure, and the very existence of the mandated order creates a strong presumption that the order was carried out in accordance with its drafting. The inquiry in Gaines that the concurrence would now impose as a preliminary inquiry here, and presumably in all subsequent closure cases, was necessary there in the absence of the protective guidelines that have since evolved in the line of state and federal cases from Kurtz in 1980 to Bone-Club in 1995. By excusing a trial court's disregard for
«2»At the midpoint of a three-week trial, the judge made the following "improvident statement" just prior to the evening adjournment: " 'Before adjourning I will state that the atmosphere is pretty unbearable. I know the jury must also feel it. . . . [W]ith those exceptions, court officers and members of the bar, the general public will be excluded, beginning tomorrow.' " 144 Wash. at 462. The Gaines court expressed doubt as to whether the trial court's order could even "be called an order" and suggested that there could be no presumption that the order had been carried out, since the trial judge entered no formal order, the clerk's minutes made no mention of the order, and the record contained no direction to a particular officer to enforce the order. Id . at 463. In contrast, Orange was entitled to the presumption that the order had been carried out, given that the trial judge plainly referred to the order as his "ruling," the clerk's minute entry recorded the ruling, and attorneys for the defense and prosecution enforced it.
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the well-settled guidelines, the concurrence's approach not only invites the waste of court resources on posttrial evidentiary hearings but results in unnecessary delays in appellate review.
[8]As to the remedy for the violation of Orange's public trial right, we granted the defendant in Bone-Club a new trial, stating that "[p]rejudice is presumed where a violation of the public trial right occurs." 128 Wn.2d at 261 -62 (citing State v. Marsh , 126 Wash. 142 , 146-47, 217 P. 705 (1923); Waller , 467 U.S. at 49 & n.9). Thus, had Orange's appellate counsel raised the constitutional violation on appeal, the remedy for the presumptively prejudicial error would have been, as in Bone-Club , remand for a new trial. Consequently, we agree with Orange that the failure of his appellate counsel to raise the issue on appeal was both deficient and prejudicial and therefore constituted ineffective assistance of counsel. See State v. McFarland , 127 Wn.2d 322 , 334-35, 899 P.2d 1251 (1995) (citing State v. Thomas , 109 Wn.2d 222 , 225-26, 743 P.2d 816 (1987) (applying the two-prong test in Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984))). The failure to raise the courtroom closure issue was not the product of "strategic" or "tactical" thinking, and it deprived Orange of the opportunity to have the constitutional error deemed per se prejudicial on direct appeal. 127 Wn.2d at 336 . The remedy for counsel's failure to raise on appeal the violation of Orange's public trial right is remand for a new trial.
First Degree Attempted Murder and First Degree Assault of Walker: Double Jeopardy . Orange was charged with attempted first degree murder of Walker and first degree assault of Walker. The State alleged in count two of the information that Orange committed the crime of first degree attempted murder, pursuant to RCW 9A.32.030 (1)(a) and 9A.28.020, when he "act[ed] with premeditated intent to cause the death of another person and did attempt to cause the death of Marcel Walker." Opening Br. of Pet'r, App. A (Second Am. Information) at 1-2. Count three
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alleged that, pursuant to RCW 9A.36.011 (1)(a), Orange committed an assault in the first degree when he, " at the same time as the crime charged in count 2 , then and there, with intent to inflict great bodily harm upon another person, did intentionally assault Marcel Walker with a firearm." Id . at 2 (emphasis added). Count three alleged in particular that, for purposes of RCW 9.94A.120 (4), recodified as RCW 9.94A.505 , Laws of 2001, ch. 10, § 6, Orange "used such force or means likely to result in death to or intended to kill Marcel Walker." Id . Orange thus contends that, because the two crimes were "based on the same shot in the same incident," the convictions on counts two and three violated double jeopardy. Opening Br. of Pet'r at 44.
[9-12]The Washington State Constitution, article I, section 9 provides the same protection against double jeopardy as the fifth amendment to the federal constitution.«3»The state and federal double jeopardy clauses protect against multiple punishments for the same offense, as well as against a subsequent prosecution for the same offense after acquittal or conviction. State v. Gocken , 127 Wn.2d 95 , 100, 896 P.2d 1267 (1995) (citing North Carolina v. Pearce , 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), overruled on other grounds by Alabama v. Smith , 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989)). Where a defendant's act supports charges under two criminal statutes, a court weighing a double jeopardy challenge must determine whether, in light of legislative intent, the charged crimes constitute the same offense. State v. Calle , 125 Wn.2d 769 , 776, 888 P.2d 155 (1995) (citing Whalen v. United States , 445 U.S. 684, 688, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980)); Brown v. Ohio , 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977) (observing that "role of the
«3» State v. Gocken , 127 Wn.2d 95 , 107, 896 P.2d 1267 (1995). Compare WASH. CONST . art. I, § 9 ("No person shall be compelled in any criminal case to . . . be twice put in jeopardy for the same offense."), with U.S. CONST . amend. V ("nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb"). "The Fifth Amendment applies to the states through the Fourteenth Amendment." Gocken , 127 Wn.2d at 100 (citing Benton v. Maryland , 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969)).
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constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense"). Where, as here, the relevant statutes do not expressly disclose legislative intent, Washington courts apply a rule of statutory construction that has been variously termed the "same elements" test, the "same evidence" test, and the Blockburger test.«4»
Washington courts first applied the "same elements" test in State v. Reiff , 14 Wash. 664 , 45 P. 318 (1896). There, the court held that successive prosecutions for larceny by means of false impersonation and for obtaining goods under false pretenses did not constitute double jeopardy:
There are elements requisite to each which are not necessary to the other, and proof of the offense charged in either of the informations would not be sufficient to sustain a conviction under the other. To sustain the plea, the offenses must be identical both in fact and in law.
"A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other ."
Id . at 667 (emphasis added) (quoting Morey v. Commonwealth , 108 Mass. 433, 434 (1871)). The Reiff court's "same elements" test is indistinguishable from the Blockburger test, which the United States Supreme Court and this court have endorsed.«5»In Blockburger v. United States , 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), the court concluded
«4» See Calle 125 Wn.2d at 777 ; State v. Roybal , 82 Wn.2d 577 , 580-81, 512 P.2d 718 (1973); Blockburger v. United States , 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
«5» United States v. Dixon , 509 U.S. 688, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993) (reestablishing the Blockburger test and overruling the "same conduct" test embraced three years prior in Grady v. Corbin , 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990)); see Gocken , 127 Wn.2d at 102 , 104 (terming the Blockburger test "the exclusive standard for reviewing" double jeopardy challenges and observing that the Reiff test "is basically identical to the Blockburger test").
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that the two charged crimes arising from a single narcotics sale were distinct offenses:
Each of the offenses created requires proof of a different element. The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Gavieres v. United States , 220 U.S. 338, 342, [31 S. Ct. 421, 55 L. Ed. 489 (1911),] and authorities cited. In that case this court quoted from and adopted the language of the Supreme Court of Massachusetts in Morey v. Commonwealth , 108 Mass. 433: "A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other."
Id . at 304 (emphasis added). Thus, the Blockburger court, likewise relying on Morey , repeated the Reiff court's assertion that two charged crimes will not constitute the same offense if each requires proof of a fact not required by the other.
The Court of Appeals has previously applied the Blockburger test to the two crimes at issue here, attempted murder and assault. See State v. Valentine , 108 Wn. App. 24 , 29 P.3d 42 (2001) (declining to review sufficiency of evidence supporting trial court's finding of deliberate cruelty), review denied , 145 Wn.2d 1022 (2002). Whereas the present case presents the question of whether punishing a single shot as an attempted murder and an assault violates double jeopardy, the Valentine court was asked to determine whether "[i]t is a double jeopardy violation to punish a stabbing separately as an assault when it is also the substantial step used to prove attempted murder." Id . at 26. Although the Valentine decision arrived at the correct conclusion - that prosecution for attempted murder and assault based on the same act violates double jeopardy - it did so despite misapplying the "same elements" or Blockburger test. Purporting to apply the test, the Court of
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Appeals did nothing more than compare the statutory elements at their most abstract level:
By the "same evidence" test, the offenses charged are not the same. Attempted murder necessarily includes the element of intent to kill, but assault does not. First degree assault necessarily contains the element of assault, but attempted murder does not; the substantial step necessary to prove attempted murder may be something other than an assault.
Id . at 27 (footnote omitted). Because the criminal attempt statute includes the element of "do[ing] any act which is a substantial step toward the commission of the crime," the Court of Appeals concluded that attempted murder requires an element lacking in assault. RCW 9A.28.020 (1) (emphasis added). The court reasoned that, since murder could be attempted by all sorts of "substantial steps" other than assault (e.g., by lying in wait or constructing a bomb), attempted murder does not necessarily include assault.
The Valentine court's reluctance to look at the facts used to prove the statutory elements exposes a misconception about the Blockburger test. That the test has been alternatively called the "same elements" and the "same evidence" test underscores that the Blockburger test requires the court to determine "whether each provision requires proof of a fact which the other does not ." 284 U.S. at 304 (emphasis added); see Whalen , 445 U.S. at 693-94. Unless the abstract term "substantial step" is given a factual definition, there is simply no way to assess whether attempted murder requires proof of a fact not required in proving the assault. The Valentine court's belief that the "substantial step" element had to remain a generic term for purposes of the "same elements" test ignores the reality that the term "substantial step" is a placeholder in the attempt statute, having no meaning with respect to any particular crime and acquiring meaning only from the facts of each case. See Harris v. Oklahoma , 433 U.S. 682, 97 S. Ct. 2912, 53 L. Ed. 2d 1054 (1977) (holding double jeopardy violated by convictions for felony murder and underlying crime); United States v. Dixon , 509 U.S. 688, 717, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993) (observing that, in Harris , Court did not
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"depart[ ] from Blockburger 's focus on the statutory elements of the offenses charged" when it "construed th[e] generic reference to some felony as incorporating the statutory elements of the various felonies upon which a felony-murder conviction could rest").
The belief that the "same elements" test requires a court to compare a generic element in one offense to a specific element in a second offense led the Valentine court to find another basis for defining the two offenses as the same for double jeopardy purposes. The court sought and found elsewhere "clear evidence that the Legislature intended to impose only a single punishment." 108 Wn. App. at 28 . The Valentine court turned to two prior Court of Appeals decisions. In State v. Read , 100 Wn. App. 776 , 998 P.2d 897 (2000), aff'd , 147 Wn.2d 238 , 53 P.3d 26 (2002), the Court of Appeals concluded that, under the Blockburger test, convictions for second degree intentional murder and first degree assault violated double jeopardy: "There is no question that Mr. Read's murder and assault convictions are the same in fact , because they are based on the same act, directed at the same victim. . . . Under the 'same evidence' test, the offenses are the same in law . . . . [P]roof of second degree intentional murder necessarily also proves first degree assault." Id . at 791-92. Applying Read , the Valentine court concluded that the legislature could not have intended "that a stabbing should result in only one conviction if the victim dies [the circumstance in Read ], but should result in two convictions [i.e., for attempted murder and assault] if the victim survives." 108 Wn. App. at 28 .
The Valentine court also recalled State v. Potter , 31 Wn. App. 883 , 645 P.2d 60 (1982), another case in which a court's general application of the "same elements" test had led to unsatisfactory results. In Potter , the defendant was found guilty of (and given consecutive sentences for) reckless driving and reckless endangerment. Although the Potter court did not set forth the statutory elements of the two offenses, it "note[d] that reckless endangerment has a general conduct element while reckless driving can arise
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only out of the operation of a vehicle." Id . at 887-88 (emphasis added). Just as the Valentine court concluded that "proof of attempted murder committed by assault will always establish an assault," 108 Wn. App. at 29 , the Potter court had "observe[d] that proof of reckless endangerment through use of an automobile will always establish reckless driving." 31 Wn. App. at 888 . In concluding that the offenses were the same and therefore violated double jeopardy, the Potter court believed that it was being forced to abandon the long-standing Blockburger test, which it consequently declared unfit for determining legislative intent. But again, the Valentine and Potter courts could have found a double jeopardy violation by applying the "same elements" test, for double jeopardy will be violated where " ' the evidence required to support a conviction upon one of [the charged crimes] would have been sufficient to warrant a conviction upon the other.' " Reiff , 14 Wash. at 667 (emphasis added) (quoting Morey , 108 Mass. at 434).
[13]Consistent with the result in Valentine but applying a more direct application of the Blockburger test, we reverse the Court of Appeals and hold that Orange's convictions for first degree attempted murder and first degree assault violated his constitutional protection against double jeopardy. See also In re Pers. Restraint of Burchfield , 111 Wn. App. 892 , 46 P.3d 840 (2002) (holding that convictions for first degree manslaughter and first degree assault arising out of same gunshot violated double jeopardy). Under the Blockburger test, the crimes of first degree attempted murder (by taking the "substantial step" of shooting at Walker) and first degree assault (committed with a firearm) were the same in fact and in law. The two crimes were based on the same shot directed at the same victim, and the evidence required to support the conviction for first degree attempted murder was sufficient to convict Orange of first degree assault.
[14] First Degree Murder of McClure and First Degree Attempted Murder of Walker: Double Jeopardy and Consecutive Sentences . As discussed above, the crime of first
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degree attempted murder of Walker (count two) was based on the same bullet giving rise to the charge of first degree assault of Walker (count three). While the information stated that the first degree assault occurred "at the same time as" the crime of first degree attempted murder, it did not allege that the crime of first degree attempted murder (count two) occurred "at the same time as" the crime of first degree murder (count one). We therefore agree that the firing of the bullet that struck McClure was "factually attenuated from the subsequent assault occurring when Mr. Orange re-aimed his gun to shoot the fleeing Mr. Walker." Orange , 2002 WL 508351, at *6, 2002 Wash. App. LEXIS 1667. Because the two charged crimes were not the same in fact, the convictions do not violate double jeopardy.
[15]Under former RCW 9.94A.400 (1)(b) (1990), "[w]henever a person is convicted of two or more serious violent offenses . . . arising from separate and distinct criminal conduct," the sentences "shall be served consecutively to each other." Offenses arise from separate and distinct conduct when they involve separate victims. State v. Wilson , 125 Wn.2d 212 , 220, 883 P.2d 320 (1994); State v. Vike , 125 Wn.2d 407 , 410, 885 P.2d 824 (1994). Because the offenses in counts one and two involved different victims, McClure and Walker, the court properly ordered Orange to serve the sentences consecutively.
CONCLUSION
In a line of cases reaching back two decades, we have developed plainly articulated guidelines that every trial court must follow when faced with a courtroom closure request. See Kurtz , 94 Wn.2d 51 ; Ishikawa , 97 Wn.2d 30 ; Eikenberry , 121 Wn.2d 205 ; Bone-Club , 128 Wn.2d 254 . Under the Bone-Club guidelines, which safeguard a defendant's article I, section 22 right to a public trial and comply with the Sixth Amendment standard set forth in Waller , 467 U.S. 39, the proponent of closure must articulate a compelling interest to be served by the closure, and the trial
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court must hold a hearing, weigh alternatives to the proposed closure, narrowly tailor the closure order to protect the identified threatened interest, and enter findings that specifically support the order. Bone-Club , 128 Wn.2d. at 258-60. Our unanimous decisions in Bone-Club , Eikenberry , and Ishikawa prescribed and applied the constitutional requirements for closure so clearly and emphatically that approving the trial court's actions in this case would undermine 20 years of consistency on this legal issue. We therefore grant Orange's personal restraint petition and remand for a new trial.
Additionally, for purposes of guidance on retrial, we address Orange's two double jeopardy challenges. First, because we conclude that Orange's convictions for first degree attempted murder and first degree assault of Walker violated the constitutional prohibition against double jeopardy, one of the charges must be dismissed prior to retrial. Second, regarding Orange's convictions for first degree murder of McClure and first degree attempted murder of Walker, we conclude that double jeopardy was not violated and that the imposition of consecutive sentences for those crimes was proper.
ALEXANDER , C.J .; JOHNSON , SANDERS , and CHAMBERS , JJ .; and SMITH , J. Pro Tem ., concur .
MADSEN , J . (concurring in majority) - While I concur in the majority opinion, I write separately because the majority unjustifiably limits appellate review of whether a defendant's constitutional right to a public trial has been violated, placing form over substance. When applying the five-part test from State v. Bone-Club , 128 Wn.2d 254 , 906 P.2d 325 (1995), a court should not lose sight of the constitutional issue itself - whether a defendant's rights protected by the open court guaranty have been abridged. The analysis of this issue must begin with asking whether closure in fact occurred. The majority examines the transcript of the trial court's ruling to resolve this question,
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adding only in dicta that even if it considered the effect of the ruling it would reach the same result. Majority at 808. However, a court must determine whether a closure order has been implemented and whether an unconstitutional closure has actually occurred. If a closure order is not carried out, there is in fact no violation of the defendant's right to an open trial.
I also write to emphasize that a trial court may order closure for a number of legitimate reasons and must be accorded discretion to do so.
ANALYSIS
The majority concludes that closure occurred here based upon the transcript of the trial court's oral ruling closing the courtroom. Majority at 807-08. The majority then adds in dicta that even if the closure was not measured by the ruling itself, but instead by the actual effect of the judge's ruling, the result would be the same. Majority at 808.
However, it has been the law in this state since at least 1927 that in order to determine whether a trial closure violates the constitutional standard applicable to the open trial guaranty, a reviewing court must consider not only the language of the closure ruling; it must also look at what actually occurred in response to the ruling. In State v. Gaines , 144 Wash. 446 , 461-62, 258 P. 508 (1927), the trial judge made the following statement before adjournment for the evening:
"Before adjourning I will state that the atmosphere is pretty unbearable. I know the jury must also feel it. I assume there is a certain part of the members of the bar, who from the standpoint of students, desire to hear the testimony, but with those exceptions, court officers and members of the bar, the general public will be excluded, beginning tomorrow."
Gaines , 144 Wash. at 461-62. The judge said that "the general public will be excluded beginning to-morrow." Gaines , 144 Wash. at 462. But this court observed that, despite the trial court's order, "on the day following the
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making of the statement, there was some attempt to carry it out, but . . . after that, the public were admitted to the court room to the extent at least of the seating capacity therein reserved for that purpose." Id . at 462. This court held that "[i]f the attendance was limited to the reasonable capacity of the court room, without partiality or favoritism, we do not understand that there is any claim that this would have constituted error." Id . at 463.
The critical inquiry is whether the effect of the court's order was to "unwarrantedly abridge" the interests protected by the open court guaranty. Press-Enterprise Co. v. Superior Court , 464 U.S. 501, 511 n.10, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984) (quoting Richmond Newspapers, Inc. v. Virginia , 448 U.S. 555, 581 n.18, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980)).«6»Thus, a reviewing court's analysis of the actual effect of a closure order is not, as the majority's analysis suggests, merely an optional analysis (that may or may not be expressed in dicta). It is, instead, an integral part of the analysis necessary to determine whether there has been an infringement of the defendant's interest protected by the open trial guaranty of the Sixth Amendment and article I, section 22 of the Washington State Constitution. If there is no closure in fact, there is no abridgement of the defendant's right to an open trial.
Moreover, if the effect of even an unjustified closure is de minimis in fact, there is also no infringement of the defendant's constitutional rights. See Peterson v. Williams , 85 F.3d 39 (2d Cir. 1996) (brief, inadvertent continuation of proper closure too trivial to violate Sixth Amendment); Snyder v. Coiner , 510 F.2d 224, 230 (4th Cir. 1975) (bailiff's refusal to allow persons to enter or leave the courtroom for a time during closing arguments too trivial to amount to a constitutional violation); United States v. Ivester , 316 F.3d 955, 959-60 (9th Cir. 2003) (exclusion of public during
«6»In Waller v. Georgia , 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984), the Court held that under the Sixth Amendment, the closure of a suppression hearing, over the objections of the accused, must meet the test applicable under the First Amendment as set out in Press-Enterprise Co. v. Superior Court , 464 U.S. 501, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984).
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mid-trial questioning of jurors about safety concerns was so trivial as not to implicate Sixth Amendment right to a public trial); United States v. Al-Smadi , 15 F.3d 153 (10th Cir. 1994) (brief, inadvertent closing of courthouse during trial did not violate the Sixth Amendment right to a public trial).
Thus, the majority adapts a flawed analysis when it holds that determining whether a closure has occurred is based on the face of the order or oral ruling.
Next, it is essential to bear in mind that a trial judge must exercise judgment in deciding whether to order closure of the courtroom. The United States Supreme Court and this court have acknowledged that the right to a public trial is not absolute. Waller v. Georgia , 467 U.S. 39, 45, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984); Bone-Club , 128 Wn.2d at 259 . A trial judge may " 'in the interest of the fair administration of justice, impose reasonable limitations on access to a trial.' " Press-Enterprise , 464 U.S. at 511 n.10 (quoting Richmond Newspapers , 448 U.S. at 581 n.18). Thus, courts have found closure justified in order to protect a defendant's right to a fair trial, to protect privacy rights of jurors, informants, and witnesses, to protect the privacy interests of juvenile defendants, and to protect ongoing government investigations. See generally ANNUAL REVIEW OF CRIMINAL PROCEDURE , Sixth Amendment at Trial , 91 GEO. L. J. 584, 587 (2003) (and cases cited therein). The Court has also recognized that "since courtrooms have limited capacity, there may be occasions when not every person who wishes to attend can be accommodated." Richmond Newspapers , 448 U.S. at 581 n.18. Thus, overcrowding may be a legitimate reason for closing a courtroom to additional spectators who have no immediate concern with the trial. United States v. Yeager , 448 F.2d 74, 80 (3d Cir. 1971); United States v. Kobli , 172 F.2d 919, 922 (3d Cir. 1949); People v. Woodward , 4 Cal. 4th 376, 841 P.2d 954, 14 Cal. Rptr. 2d 434, 435 (1992). However, courts have held that there is a special concern for ensuring that a defendant's family be permitted to attend. In re Oliver , 333 U.S. 257,
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271-72, 68 S. Ct. 499, 92 L. Ed. 682 (1948); English v. Artuz , 164 F.3d 105, 108 (2d Cir. 1998); State v. Torres , 844 A.2d 155, 159 (R.I. 2004). Thus, while overcrowding is a legitimate basis for closing a courtroom to further spectators, it does not outweigh the defendant's interest in having his or her family present where, as the majority notes, alternative arrangements can be made so that family members may attend. E.g ., Torres , 844 A.2d 155.
Finally, two other aspects of the majority opinion concern me. First, the majority says that it is the trial court's affirmative duty, not that of a court in a reference hearing, to identify a compelling interest justifying closure. Majority at 810. Certainly under Bone-Club it is the trial court's duty to make this determination. But the failure to fulfill that duty does not mean that a defendant's right to an open trial has been infringed. The majority, however, treats its consideration of the reference court's findings as dicta, majority at 810, and thus its true holding is that unless the trial court itself makes the proper, sufficiently specific findings, its closure order cannot be sustained. Given that the result of this approach could well be a burdensome retrial where there was no actual violation of the right to an open trial, the approach makes little sense. Moreover, some courts have reasoned, contrary to the majority's implicit disapproval of findings upon later consideration, that remand for entry of the required findings is the appropriate course where insufficient findings were made. E.g ., United States v. Doe , 63 F.3d 121, 131 (2d Cir. 1995); United States v. Galloway , 937 F.2d 542, 547 (10th Cir. 1991), vacated en banc on other grounds , 56 F.3d 1239 (10th Cir. 1995). I fail to see why this cannot be achieved in a reference hearing, particularly when the issue is first raised in a personal restraint petition as is the case here.
Lastly, the majority states: " 'We hold[, as we did in Bone-Club , that] the trial court's failure to follow the five-step closure test . . . violated Defendant's right to a public trial under section 22.' " Majority at 812 (quoting Bone-Club , 128 Wn.2d at 261 ). This is a misstatement of the
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holding in Bone-Club and an improper holding in this case. What the court actually said in Bone-Club was: " Lacking a trial court record showing any consideration of Defendant's public trial right, we cannot determine whether closure was warranted . We hold the trial court's failure to follow the five-step closure test . . . violated the Defendant's right to a public trial under section 22." Bone-Club 128 Wn.2d at 261 (emphasis added). Thus, it was the absence of a record from which the reviewing court could determine whether the public trial right was violated that led to the stated holding in Bone-Club . It must be remembered that the ultimate question is whether there has been an abridgement of the defendant's right to an open trial. If a reviewing court can make the determination from the record that closure was warranted, the failure to engage in the five-step process, in and of itself , should not lead to a holding that a defendant's right to a public trial has, solely because of that failure, been abridged. I do not suggest, however, that the Bone-Club test be ignored, nor that this court depart from the presumption of openness.«7»But it places form over substance to hold that a trial court's failure to apply Bone-Club automatically requires a retrial.
With the qualifications stated in this opinion, I concur in the majority's decision.
BRIDGE , J ., concurs with MADSEN , J .
IRELAND , J . (dissenting) - I agree with the concurrence by Justice Madsen that the court may close a courtroom in order to protect a defendant's right to a fair trial. As the concurrence points out, overcrowding may be a legitimate reason for closing a courtroom. Richmond Newspapers, Inc. v. Virginia , 448 U.S. 555, 581 n.18, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980). In fact, it is in the interest of the defendant to have a jury venire untainted by the distrac
«7»In Press-Enterprise , the Supreme Court held that "[t]he presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Press-Enterprise , 464 U.S. at 510.
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tions of warring family members and spectators mingling among them. Much of the jury inquiry during the claimed court closure was conducted in chambers. Allowing the jury venire to occupy all of the available seating in this case, to the exclusion of spectators, even family, was not an abuse of discretion. No member of the press claimed actual exclusion. The reference hearing showed the effect of the claimed closure was de minimis. Although the trial court should follow the five-step closure test of State v. Bone-Club , 128 Wn.2d 254 , 906 P.2d 325 (1995), I reject the notion that failure to do so is subject to automatic reversal. I would remand the case for resentencing after dismissal of one of two charges of attempted murder of Marcel Walker and first degree assault of Walker, which the majority properly finds violates double jeopardy. Otherwise, I would affirm the verdict of the court in all respects. Therefore, I dissent.