* Personal Restraint Petition Of Calvin Artie Eagle

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Personal 	) 	No. 69593-2-1
Restraint of 	)
) 	DIVISION ONE
CALVIN ARTIE EAGLE, 	)
) 	PUBLISHED OPINION
Petitioner. 	) 	5"
) 	FILED: July 18,2016 	9?
CT3 	Or"
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cr,
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Trickey, 	J. — Calvin Artie Eagle 	filed 	this 	personal 	restraint 	petition
challenging his convictions of one count of first degree rape of a child and two
counts of second degree rape of a child. 	He claims that the trial court violated
his federal and state constitutional rights to an open 	and 	public trial when it
arraigned him on an amended information in chambers prior to trial. 	He also
claims that his appellate counsel was constitutionally ineffective for failing to raise
this claim on direct appeal.
We hold that the in-chambers arraignment on the amended information
violated Eagle's right to a public trial. 	But, because Eagle fails to demonstrate
actual and substantial prejudice from the violation to support his direct claim, and
because Eagle fails to show that his appellate counsel was ineffective in failing to
raise the claim 	on direct appeal, we conclude that Eagle is not entitled to
collateral relief. 	Accordingly, we deny Eagle's petition.
FACTS
In late 2009, a jury convicted Eagle of one count of first degree rape of a
child and two counts of second degree rape of a child. 	The facts underlying
these convictions are set forth in this court's prior unpublished opinion. State v.
Eagle, noted at 162 Wn. App. 1008, 2011 WL 2179261. 	In March 2010, the trial
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69593-2-1 / 2
court sentenced Eagle to an indeterminate sentence of 216 months to life.
Eagle appealed to this court. 	He 	argued, among other things, that a
conference in chambers regarding jury instructions violated his right to a public
trial, his trial attorney provided ineffective assistance of counsel, and the failure to
give a unanimity or Petrich1 	instruction violated his right to a unanimous jury
verdict. 	Eagle, 2011 WL 2179261, at *1. 	On May 31, 2011, this court issued its
opinion 	affirming 	Eagle's 	convictions. 	The 	Supreme 	Court 	denied 	Eagle's
petition for review. 	State v. Eagle, 173 Wn.2d 1002, 271 P.3d 248 (2011). 	The
mandate issued on December 14, 2012.
Eagle subsequently filed this personal restraint petition. 	He raised three
claims regarding his right to a public trial. 	He claimed that his right to a public
trial was violated when the trial court: (1) conducted voir dire of individual jurors
in 	chambers 	and 	sealed 	juror questionnaires, 	(2) conducted 	a 	hearing 	in
chambers regarding 	text messages that Eagle received 	during 	trial, 	and (3)
arraigned Eagle on an amended information in a closed hearing in chambers.
Eagle also claimed that appellate counsel was constitutionally ineffective for
failing to raise these issues on direct appeal.
On September 10, 2013, this court dismissed Eagle's claim regarding voir
dire 	and juror questionnaires. 	It 	stayed Eagle's remaining 	claims 	pending
resolution of two Supreme Court cases—State v. Shearer, 181 Wn.2d 564, 334
P.3d 1078 (2014) and State v. Frawlev, 181 Wn.2d 452, 334 P.3d 1022 (2014).
On August 4, 2015, this court lifted the stay and dismissed all of Eagle's
claims with the exception of whether the arraignment proceeding violated Eagle's
1 State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984).
2
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69593-2-1 / 3
right to a public trial, which it referred to a panel of judges for determination on
the merits. 	At this court's request, the parties provided supplemental briefing on
this issue.
ANALYSIS
Right to a Public Trial
Eagle argues that the trial court violated his constitutional rights to an
open 	and 	public trial 	when 	it arraigned 	him 	on 	an 	amended 	information 	in
chambers. 	We agree with Eagle that the trial court violated his right to a public
trial 	when 	it 	conducted 	the 	in-chambers 	arraignment 	on 	the 	amended
information. 	However, 	because 	Eagle fails 	to show 	actual 	and 	substantial
prejudice from this error, we reject this claim.
Both the state and federal constitutions guarantee criminal defendants the
right to a public trial.2 	U.S. Const, amend. VI; Wash. Const, art. I, § 22. 	The
Washington Constitution also guarantees the right of an open trial to the public
Wash. 	Const, 	art. 	I, 	§ 10. 	"These 	related 	constitutional 	provisions 	'serve
complimentary and interdependent functions in assuring fairness of our judicial
system,'" and "are often collectively called 'the public trial right.'" 	State v. Love,
183 Wn.2d 598, 605, 354 P.3d 841 	(2015) (quoting State v. 	Bone-Club, 128
Wn.2d 254, 259, 906 P.2d 325 (1995)), cert, denied, 136 S. Ct. 1524 (2016).
"The public trial right is not absolute." 	State v. Wise, 176 Wn.2d 1, 9, 288
3
2"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury." U.S. Const, amend. VI.
"In criminal prosecutions the accused shall have the right ... to have a speedy public
trial by an impartial jury of the county in which the offense is charged to have been
committed." Wash. Const, art. I, § 22. 	„
3 "Justice in all cases shall be administered openly, and without unnecessary delay.
Wash. Const, art. I, § 10.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69593-2-1/4
P.3d 1113 (2012). 	The trial court may close the courtroom so long as it "justifies
the 	closure 	by conducting 	an 	on-the-record 	balancing of several 	factors,
commonly referred to as the Bone-Club factors." 	State v. Nionge. 181 Wn.2d
546, 553, 334 P.3d 1068, cert, denied, 135 S. Ct. 880 (2014).
"A three-step framework guides our analysis in public trial cases. 	First, we
ask whether the public trial right attaches to the proceeding at issue." 	Love, 183
Wn.2d at 605. 	Second, if the right attaches, we ask whether a closure occurred.
Love, 183 Wn.2d at 605. Third, we ask whether the closure was justified. 	Love.
183 Wn.2d at 605. 	If we conclude that the right to a public trial does not apply to
the proceeding at issue, we need not reach the remaining steps of the analysis.
State v. Smith, 181 Wn.2d 508, 519, 334 P.3d 1049 (2014).
"[N]ot every interaction between the court, counsel, and defendants will
implicate the right to a public trial or constitute a closure if closed to the public."
State v. Sublett, 176 Wn.2d 58, 71, 292 P.3d 715 (2012). 	To determine whether
the public trial right attaches to a particular proceeding, courts utilize the two-part
"experience and logic" test. 	Sublett, 176 Wn.2d at 72-75. 	The "experience"
prong of this test asks "'whether the place and process have historically been
open to the press and general public.'" 	Sublett, 176 Wn.2d at 73 (quoting Pressz
Enterprise Co. v. Superior Court, 478 U.S. 1, 8, 106 S. Ct. 2735, 92 L Ed. 2d 1
(1986) 	(Press 	ID). 	"The 	logic 	prong 	asks 	'whether 	public 	access 	plays 	a
significant positive role in the functioning of the particular process in question.'"
Sublett, 176 Wn.2d at 73 (quoting Press II, 478 U.S. at 8). 	Only if both questions
are answered in the affirmative is the public trial right implicated. 	Sublett, 176
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69593-2-1 / 5
Wn.2d at 73. 	The defendant has the burden to satisfy the experience and logic
test. 	In re Yates, 177 Wn.2d 1, 29, 296 P.3d 872 (2013).
On direct appeal, 	wrongful deprivation 	of the 	right to a 	public trial is
structural error presumed to be prejudicial to the defendant. 	Wise, 176 Wn.2d at
13, 16. 	"That is because such error 'affect[s] the framework within which the trial
proceeds, rather than simply an error in the trial process itself.'" 	Shearer, 181
Wn.2d at 572 (alteration in original) (internal quotation marks omitted) (quoting
Wise, 176Wn.2d at 13-14).
On collateral review, however, 	a meritorious public trial violation is not
presumed prejudicial. 	In re Pers. Restraint of Coqgin, 182 Wn.2d 115, 119-20,
340 P.3d 810 (2014). 	Rather, a petitioner claiming a public trial violation for the
first time 	on 	collateral 	review 	must 	show 	actual 	and 	substantial 	prejudice.
Coggin, 182 Wn.2d at 116. 	The one "exception" to this rule is where petitioners
allege a public trial violation by way of an ineffective assistance of counsel claim.
Coggin, 182 Wn.2d at 119.
Here, Eagle claims that the trial court violated his right to a public trial
when it arraigned him in chambers on an amended information. 	We begin our
analysis 	by 	examining 	the 	relevant 	procedural 	history 	and 	the 	particular
proceeding at issue.
The State originally charged Eagle with two counts of rape of a child in the
second degree. 	On June 27, 2008, Eagle was arraigned in open court on this
information.
On February 17, 2009, the State filed the first amended information. 	The
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69593-2-1 / 6
first amended information charged four counts. 	It added two counts of first
degree rape of a child and it erroneously increased the former counts of second
degree rape of a child to first degree rape of a child.
Two days 	later, the trial court held a hearing on a defense motion to
continue. 	At the hearing, the State asked the court to arraign Eagle on the first
amended 	information. 	The court declined to do 	so, 	noting 	that the existing
affidavit may not cover probable cause. 	The court indicated that if probable
cause is found, then the prosecutor should "note it up for arraignment on the
regular arraignment calendar."4 The prosecutor did not do so.
At pretrial motions on December 1, 2009, Eagle moved to challenge the
first amended information. 	He argued that, because the State never provided an
amended affidavit of probable cause, it would be extremely prejudicial to allow
the State to amend the charges at that time. 	He asked the court to refile the
original information. 	The State conceded error, but it argued that because Eagle
had notice of the amended charges, there was no prejudice. 	It asked the court to
allow the first amended information and to arraign Eagle at that time.
During this discussion, the State noticed the errors in the first amended
information. 	The first amended information erroneously charged four counts of
rape of a child in the first degree. 	But the State intended for the first amended
information to charge two counts of first degree rape of a child and two counts of
second degree rape of a child.
The trial court agreed to permit the State to amend the charges but stated
4 Motion to Strike and Response Br. of Resp't, App. E; App. F (Report of Proceedings
(RP)(Feb. 19, 2009) at 8).
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No. 69593-2-1 / 7
that it would not arraign Eagle on an erroneous amended information. 	Because
the 	State 	needed 	time 	to 	get 	the 	new 	information—the 	second 	amended
information—prepared, the trial court elected to conduct the arraignment on the
second amended 	information in chambers. 	The record 	reflects the following
sequence of events:
[Prosecutor]: 	Your Honor, we need about 15 minutes to get the
Information prepared.
[The Court]: 	We'll have the panel sitting out here ready to go so I
want you to—maybe we'll meet in chambers with the court reporter
and I can do the arraignment in chambers.
[Prosecutor]: 	Thank you, Your Honor.
(Recess taken.)
(The following proceedings
were had in chambers:)
[The 	Court]: 	Mr. 	Eagle, 	I'm 	holding 	what's 	called 	a 	Second
Amended Information in your case; have you seen a copy of that?
[Eagle]: 	Yes.
[The Court]: 	You are charged in Count I of the Second Amended
Information with the crime of rape of a child in the first degree; in
Count II with the crime of rape of a child in the first degree; in Count
III with the crime of rape of a child in the second degree; and in
Count IV with the crime of rape of a child in the second degree. 	Do
you want me to read this to you?
[Defense Counsel]: It's not necessary, Your Honor.
[The Court]: 	To those charges how do you plead?
[Eagle]: 	Not guilty.
[The Court]: 	Not guilty pleas are entered.[5]
At 	no 	time 	did 	the 	trial 	court 	ask 	whether 	anyone 	objected 	to 	this
5Pers. Restraint Petition and Opening Br., App. B (RP (Dec. 1 &2, 2009) at 39-40).
7
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69593-2-1 / 8
procedure. 	Nor did the 	trial 	court conduct 	a 	Bone-Club analysis 	prior to
conducting the in-chambers arraignment on the second amended information.
As we stated earlier in this opinion, the first step in analyzing an alleged
violation of the right to a public trial is determining whether the public trial right
attaches to the proceeding at issue. 	Love, 	183 Wn.2d at 605. 	And, as our
Supreme Court recently stated, "[W]e must take care to define the proceeding at
issue with 	precision 	because 	our focus is on the proceeding that actually
occurred, not on the general label that might be attached to a variety of related
proceedings." State v. Jones. No. 89321-7, 2016 WL 1594034, at *4 (Wash. Apr.
21,2016).
The State characterizes the proceeding in this case as an "arraignment on
a non-substantive amendment to the information."6 	In doing so, it focuses only
on the differences 	between the 	first 	amended 	information 	and the second
amended information. 	The State further asserts that the right to a public trial is
not 	implicated 	by 	an 	arraignment 	on 	a 	non-substantive 	amendment 	to 	the
information.
We disagree with the State that the proceeding that actually occurred in
this 	case 	was 	an 	arraignment 	on 	a 	non-substantive 	amendment 	to 	the
information. 	The State's focus—on the differences between the first amended
information and the second amended 	information—is misplaced. 	Eagle was
never arraigned on the first amended information due to the State's failure to
properly file this information and note it for arraignment. 	Accordingly, we must
look at the effect of both the first amended information and the second amended
6Supp. Response to Pers. Restraint Petition at 5.
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No. 69593-2-1 / 9
information. The State acknowledged this at oral argument before this court.
As compared to the original information, the second amended information
reflects substantial changes. 	Most significantly, the second amended information
added two charges of first degree rape of a child. 	There can be no serious
dispute that the addition of these two charges was a substantive amendment to
the original information.
Accordingly, 	because 	the 	actual 	proceeding 	in 	this 	case 	was 	an
arraignment 	on a substantive amendment to the information, 	we need not
determine whether an arraignment on a 	non-substantive amendment to the
information implicates the right to a public trial. 	Instead, we turn our focus to the
particular issue before us—whether an arraignment on a substantive amendment
to the information implicates the right to a public trial. 	It does not appear that any
Washington case has addressed whether this type of proceeding implicates the
defendant's public trial right. 	Therefore, we apply the experience and logic test.
Under the experience prong, the relevant inquiry is "'whether the place
and 	process 	have 	historically 	been 	open to the 	press 	and 	general 	public.'"
Sublett, 176 Wn.2d at 73 (quoting Press II, 478 U.S. at 8).
Arraignments 	have 	historically 	been 	performed 	in 	open 	court. 	This
principle 	is 	well 	established. 	"[0]ur criminal 	law tradition 	insists 	on 	public
indictment, public trial, and public imposition of sentence." 	Smith v. Doe, 538
U.S. 84, 98-99, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003); see ateo 22 C.J.S.
Criminal Law § 483, at 612 (2006) ("The arraignment should be held in open
court, at stated terms, whether regular or adjourned, of which the general public
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69593-2-1/10
has been advised." (emphasis added) (footnote and citation omitted)).
In Washington, the concept of public arraignments is found in case law
dating back 	more than 	a 	century. 	In 	State v. Philip, 	our Supreme 	Court
recognized that "a defendant must be arraigned before the court." 44 Wash. 615,
618, 87 P. 955 (1906) (citing Ballinger's Ann. Codes & St. § 6884); see also
State v. Nelson, 39 Wash. 221, 224, 81 P. 721 (1905) ("The order of arraignment
. .. was delivered to the appellant in open court.").
This principle is also found 	in 	court rules and statutes. 	The current
Federal Rules of Criminal Procedure expressly state that "[a]n arraignment must
be conducted 	in 	open 	court." 	Fed. 	R. 	Crim. 	P. 	10(a) 	(emphasis 	added).
Similarly, although the current Washington Criminal Rule (CrR) 4.1(a) does not
require 	that 	an 	arraignment 	occur 	in 	open 	court, 	former 	CrR 	41(a) 	(2002)
provided, 	"'Promptly 	after 	the 	indictment 	or 	information 	has 	been 	filed, 	the
defendant 	shall 	be arraigned 	thereon 	in 	open 	court.'"7 	Washington's 	rule
replaced former 	RCW 	10.40.010,8 which 	provided, 	"'When the 	indictment or
information has been filed by the defendant, if he has been arrested, or as soon
thereafter as he may be, shall be arraigned thereon before the court.'"
These authorities address arraignments in general and do not address the
particular proceeding in this case—an arraignment on a substantive amendment
to the information. 	But as our Supreme Court has made clear, "It is well settled
that a substantial amendment of an information requires that the accused be
arraigned on the amended information." 	State v. Hurd, 5 Wn.2d 308, 312, 105
7 (Emphasis added.)
8 Former RCW 10.40.010 (1983) (repealed by Laws of 1984, ch. 76 § 27).
10
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69593-2-1 /11
P.2d 59 (1940). 	There is nothing to indicate that an arraignment on a substantive
amendment to the information would not implicate these same rules, statutes,
and established principles. 	For these reasons, we conclude that the experience
prong is satisfied.
Under the logic prong, the relevant inquiry is "'whether public access plays
a significant positive role in the functioning of the particular process in question.'"
Sublett, 176 Wn.2d at 73 (quoting Press II. 478 U.S. at 8). 	"In analyzing this
prong, we look to whether openness will advance the purposes of the public trial
right: 	'to ensure a 	fair 	trial, 	to 	remind 	the 	prosecutor 	and 	judge 	of 	their
responsibility to the accused and the importance of their functions, to encourage
witnesses to come forward, 	and 	to discourage 	perjury.'" 	Jones, 	2016 WL
1594034, at * 6 (quoting Sublett, 176 Wn.2d at 72).
Here, 	concerns relating 	to witnesses and 	perjury 	are not implicated.
Rather, the focus is on the purposes of ensuring a fair trial and reminding the
prosecutor and the court of their responsibility to Eagle and the importance of
their functions. 	As Eagle points out, Washington does not require grand juries in
making 	charging decisions. 	Instead, 	the 	power to 	charge 	by 	information 	is
vested in the prosecutor's office.
Requiring 	public access to arraignments thus serves as an important
check on the judicial system. 	The Supreme Court underscored the importance of
this safeguard in Wise:
A public trial is a core safeguard in our system of justice. 	Be
it through members of the media, victims, the family or friends of a
party, 	or 	passerby, 	the 	public 	can 	keep 	watch 	over 	the
administration of justice when the courtroom is open. 	The open
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No. 69593-2-1/12
and public judicial process helps assure fair trials. 	It deters perjury
and other misconduct by participants in a trial. 	It tempers biases
and undue partiality. 	The public nature of trials is a check on the
judicial system, which the public entrusts to adjudicate and render
decisions of the highest import. 	It provides for accountability and
transparency, assuring that whatever transpires in court will not be
secret or unscrutinized. 	And openness allows the public to see,
firsthand, justice done in its communities.
176Wn.2dat4-6.
Public access to arraignments subjects the prosecutor to public scrutiny
over charging decisions. 	Therefore, it serves an important role in ensuring that
the prosecutor exercises his or her power judiciously and without bias. 	It holds
these public officials accountable and keeps watch over the administration of
justice. 	Further, there is often intense media and public interest in arraignments.
Requiring 	public 	arraignments 	allows 	for 	these 	interested 	parties 	to "see,
firsthand, justice done in [their] communities." 	Wise, 176 Wn.2d at 6. 	For these
reasons, we conclude that the logic prong is also satisfied.
The State argues that the right to a public trial is not implicated because
the "substance of the amendment had already been addressed in open court"
and 	the reading 	of the information 	and 	Eagle's 	plea 	were 	recorded 	in 	the
transcripts.9 	But the State fails 	to explain 	how this 	is 	relevant 	under the
experience and 	logic test. 	Moreover, 	the fact 	remains that the arraignment
proceeding itselfwas not conducted in open court.
In 	short, 	both experience 	and 	logic 	compel the 	conclusion 	that 	an
arraignment on a substantive amendment to the information implicates the right
to a public trial.
Supp. Response to Pers. Restraint Petition at 7.
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No. 69593-2-1/13
The next step in the analysis is to consider whether a closure occurred.
"[T]he appellant must supply a record that reveals that the court took actions
amounting to a closure, such as explicitly issuing an order completely closing the
proceedings or moving the proceedings to chambers." 	State v. Gomez, 183
Wn.2d 29, 35, 347 	P.3d 	876 (2015). 	Here, the record 	shows that the court
moved the proceedings to chambers and conducted the arraignment on the
amended information there. A closure occurred.
The final step is to consider whether the closure was justified. 	"A closure
unaccompanied by a Bone-Club analysis on the record will almost never be
considered justified." 	Smith, 	181 	Wn.2d at 520. 	When a trial court fails to
conduct a Bone-Club analysis, a reviewing court may examine the record to
determine if the trial court effectively weighed the defendant's public trial right
against other compelling interests. 	Smith, 181 Wn.2d at 520. 	Here, the trial
court did not conduct a Bone-Club analysis on the record. 	Nor does the record
reflect that the trial court effectively weighed Eagle's public trial right against
other compelling interests. The closure was not justified.
In sum, the experience and logic test indicates that the proceeding that
occurred 	in this case implicates the public trial 	right. 	Because there was a
closure, and because the closure was not justified, we conclude that the trial
court violated Eagle's right to a public trial.
The next question is whether Eagle is entitled to collateral relief. 	As noted
earlier, a meritorious public trial violation is not presumed prejudicial on collateral
review. 	Coggin, 	182 Wn.2d at 119-120. 	A petitioner claiming a public trial
13
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69593-2-1 /14
violation for the first time on collateral review must show actual and substantial
prejudice. 	Coggin, 182 Wn.2d at 119-20.
Eagle fails to meet this burden. 	He makes no argument about how the in-
chambers 	arraignment 	on 	the 	amended 	information 	caused 	actual 	and
substantial prejudice. 	He instead appears to abandon this claim and rely solely
on his ineffective assistance of counsel claim. 	Accordingly, we turn our attention
to Eagle's second claim.
Ineffective Assistance of Counsel
Eagle 	next 	claims 	that 	his 	appellate 	counsel 	was 	constitutionally
ineffective in failing to raise the previous claim on direct appeal. 	He contends
that he is entitled to collateral relief in the form of a new trial. We disagree.
To establish ineffective assistance of appellate counsel, a petitioner must
establish 	that 	(1) 	counsel's 	performance was 	deficient and 	(2) 	the deficient
performance actually prejudiced the defendant. 	In re Pers. Restraint of Morris,
176Wn.2d 157, 166, 288 P.3d 1140(2012).
"'[P]erformance 	is 	deficient 	if 	it 	falls 	below 	an 	objective 	standard 	of
reasonableness.'" 	Morris, 	176 Wn.2d 	at 167 (alteration 	in 	original) 	(internal
quotation marks omitted) (quoting State v. Grier, 171 Wn.2d 17, 33, 246 P.3d
1260 (2011), cert, denied, 135 S. Ct. 153 (2014)). 	"This is a high threshold, and
the petitioner 'must overcome a strong presumption that counsel's performance
was reasonable.'" 	Morris, 176 Wn.2d at 167 (internal quotation marks omitted)
(quoting Grier, 171 Wn.2d at 33). 	"One method of overcoming this presumption
is by proving that counsel's performance was neither a legitimate trial strategy
14
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69593-2-1/15
nor a reasonable tactic." 	Morris, 176 Wn.2d at 167 (citing Grier, 171 Wn.2d at
33-34).
To establish prejudice, the defendant must show there is a reasonable
probability that, but for the deficient performance, the outcome would have been
different. 	State v. McFarland, 	127 Wn.2d 	322, 	335, 	899 	P.2d 	1251 	(1995).
When raising an ineffective assistance of appellate counsel claim, the petitioner
must show a reasonable probability that he would have prevailed on his appeal.
In re Pers. Restraint of Dalluge, 152 Wn.2d 772, 788, 100 P.3d 279 (2004). 	"A
reasonable probability is a probability sufficient to undermine confidence in the
outcome." 	Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984).
As stated earlier, "[t]he general rule is when a personal restraint petitioner
alleges 	a 	constitutional 	violation, 	the 	petitioner 	must 	establish 	by 	a
preponderance of the evidence that the constitutional error worked to his actual
and substantial prejudice." 	Coggin, 182 Wn.2d at 119. 	However, in Morris, our
Supreme Court "recognized an exception to this general rule and held that [it]
would presume prejudice where petitioners allege a public trial right violation by
way of an ineffective assistance of appellate counsel claim." 	Coggin, 182 Wn.2d
at 119 (citing Morris, 176 Wn.2d at 166).
Thus, "[a]n anomaly exists with respect to prevailing in a personal restraint
petition when one encountered an infringement on open trial rights." 	State v.
Fort, 190 Wn. App. 202, 238, 360 P.3d 820 (2015), review denied, 185 Wn.2d
1011, 368 P.3d 171 (2016). 	"On the one hand, when the petitioner asserts his or
15
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69593-2-1/16
her public trial rights directly, the petitioner must show actual prejudice." 	Fort.
190 Wn. App. at 238. 	"On the other hand, when the petitioner asserts his or her
public trial rights indirectly, by arguing counsel engaged in ineffective assistance
by not asserting his or her public trial rights during an appeal, petitioner need not
prove actual prejudice." 	Fort, 190 Wn. App. at 238. 	Instead, courts "presume
prejudice for petitioners who allege a public trial right violation by way of an
ineffective assistance of appellate counsel claim." Coggin, 182 Wn.2d at 122.
Here, as already discussed, the trial court violated Eagle's right to a public
trial when it arraigned Eagle on the second amended information in chambers.
Despite the State's assertion to the contrary, Eagle's appellate counsel failed to
raise this claim on direct appeal.
Thus, the 	first 	question 	presented 	is whether this failure 	constituted
deficient performance. 	This question "necessarily requires proving that counsel
should have known to raise the public trial right issue on appeal." 	Morris, 176
Wn.2d at 167.
Eagle's direct appeal came before this court in 2011, prior to the Supreme
Court's adoption of the experience and logic test. At that time, the controlling test
was the "adversary proceedings" test, under which public trial rights applied only
in 	adversary 	proceedings, 	including 	presentation 	of evidence, 	suppression
hearings, and jury selection. 	In re Pet, of Ticeson, 159 Wn. App. 374, 384, 246
P.3d 550 (2011). 	The right did 	not attach where the court resolved "'purely
ministerial or legal issues that [did] not require the resolution of disputed facts.'"
Ticeson, 159 Wn. App. at 384 (internal quotation marks omitted) (quoting State v.
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No. 69593-2-1/17
Koss, 158 Wn. App. 8, 16-17, 241 P.3d 415 (2010)).
Like in Morris, at the time of Eagle's direct appeal, "appellate counsel had
but to look at [the Supreme Court's] public trial jurisprudence to recognize the
significance 	of 	closing 	a 	courtroom 	without 	first 	conducting 	a 	Bone-Club
analysis." 	176 Wn.2d at 167.
However, in contrast to Morris, it was not clear at the time of Eagle's direct
appeal that this particular proceeding even implicated 	Bone-Club. 	In Morris,
there was an existing opinion at the time of Morris's direct appeal, In re Personal
Restraint of Orange, 152 Wn.2d 795, 807-08, 814, 100 P.3d 291 	(2004), that
"clarified, without qualification, both that Bone-Club applied to jury selection and
that 	closure 	of voir dire 	to 	the 	public 	without the 	requisite 	analysis 	was 	a
presumptively prejudicial error on direct appeal." 	176 Wn.2d at 167.
Here, 	in contrast, there was no opinion existing at the time of Eagle's
direct appeal 	that 	conclusively established that 	arraignments on substantive
amendments to the information were subject to Bone-Club or that such errors
were presumptively prejudicial on direct appeal. 	Thus, Eagle has not shown that
counsel should have known to raise this public trial right issue. 	Eagle's failure to
show deficient performance is fatal to this claim.
In any event, even if we were to assume that Eagle's appellate counsel
was deficient, Eagle fails to show prejudice from his appellate counsel's failure to
raise this claim on direct appeal.
Eagle relies on Orange 	and 	Morris to argue that he 	has 	established
prejudice.
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No. 69593-2-1/18
In Orange, the Supreme Court held that the trial court's closure of the
courtroom during voir dire violated Orange's right to a public trial. 	152 Wn.2d at
811-12. 	It also held that appellate counsel was ineffective for failing to raise this
claim on direct appeal. 	152 Wn.2d at 814. 	It reasoned:
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 "[prejudice 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 v. rGeorgia, 467
U.S. 39, 49 n.9, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984)]. 	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. 	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. 	The remedy for counsel's failure to
raise on appeal the violation of Orange's public trial right is remand
for a new trial.
152 Wn.2d at 814 (some internal citations omitted).
Similarly, 	in 	Morris, 	the 	Supreme 	Court 	held 	that appellate 	counsel's
failure to raise a public trial right violation based on the judge's in-chambers
questioning of 14 potential jurors constituted ineffective assistance of appellate
counsel. 	It reasoned:
To establish ineffective assistance of appellate counsel, a
petitioner must establish (1) counsel's performance was deficient
and (2) the deficient performance actually prejudiced the defendant.
Here, there is little question that the second prong of this test is
met. 	In Wise and fState v. Paumier, 176Wn.2d 29, 288 P.3d 1126
(2012),] 	we 	clearly 	state 	that 	the 	trial 	court's 	in-chambers
questioning 	of potential jurors is structural error. 	Had 	Morris's
appellate counsel raised this issue on direct appeal, Morris would
have 	received 	a 	new 	trial. 	No 	clearer 	prejudice 	could 	be
18
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69593-2-1/19
established.
176 Wn.2d at 166 (some internal citations omitted).
Eagle asserts that, like in Orange and 	Morris, the violation in this case
would have been presumed prejudicial on direct appeal, and reversal would have
been automatic. 	He therefore contends that he has established prejudice to
support his ineffective assistance of appellate counsel claim.
We disagree. 	As we read Orange and Morris, those cases do not stand
for 	the 	broad 	proposition 	that 	the 	failure 	to 	raise 	any 	public 	trial 	claim
automatically 	establishes 	prejudice 	to sustain 	an 	ineffective 	assistance 	of
counsel claim raised in a personal restraint petition. 	Rather, it is important to
look at the nature of the violation and the corresponding remedy.
Both Orange and Morris involved a violation of the right to a public trial
during voir dire. 	It is clear that the remedy for this type of violation is a new trial.
And, in both Orange and Morris, this fact was essential to the court's prejudice
analysis. 	In concluding that the failure to raise the public trial claim on direct
appeal was prejudicial to the petitioners, the Supreme Court expressly relied on
the fact that the petitioners would have received a new trial. 	Orange, 152 Wn.2d
at 814; Morris, 176 Wn.2d at 166.
Neither Orange nor Morris addressed a situation where the remedy on
direct appeal would have been something less than a new trial. 	On that basis,
Orange and Morris are distinguishable. 	In the case before us, the public trial
violation would not have resulted in a new trial if it had been raised on direct
appeal.
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No. 69593-2-1 / 20
Both federal 	and Washington courts have held that a 	new trial is not
always required for a violation of the right to a public trial. 	In Waller, the United
States Supreme Court held that although the defendant's right to a public trial
was violated when the courtroom was closed for a 	suppression hearing, the
defendant was not entitled to a new trial as a remedy for the violation. 467 U.S.
at 48-50. Instead, noting that "the remedy should be appropriate to the violation,"
the Court remanded for a new suppression hearing. 	467 U.S. at 50.
Our Supreme Court recognized this principle in Wise. 	176 Wn.2d at 19.
Citing Waller, 	it noted that "[w]here a 	public trial 	right violation 	occurs at a
suppression hearing or some other easily separable part of a trial, remand for a
public hearing may be appropriate." 	Wise, 176 Wn.2d at 19. 	Additionally, and
more recently, our Supreme Court reiterated this principle in Nionqe. 	It stated:
"Where the error involves only the closure of a pretrial proceeding that can be
repeated without any effect on the trial, a lesser remedy may be appropriate."
181 Wn.2d at 554 n.3.
We applied this principle in State v. Rainev. 180 Wn. App. 830, 843, 327
P.3d 56 (2014). 	Although we determined that Rainey's public trial rights were
violated during a posttrial hearing on a motion for a new trial, we rejected his
argument that the proper remedy for the violation was reversal of his conviction.
180 Wn. App. at 837, 843. 	Relying on Waller and Wise, we concluded that,
because the posttrial hearing was separate from the trial itself and the violation
did not taint the original trial, a new trial was not necessary. 	180 Wn. App. at
843. 	We affirmed Rainey's conviction but remanded for a new hearing on his
20
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69593-2-1/21
motion for a new trial. 	180 Wn. App. at 845.
Here, like in Rainev, the arraignment proceeding was separate from the
trial itself and did not taint the original trial. 	Eagle makes no argument to the
contrary. 	Thus, even if Eagle's appellate counsel had raised this claim on direct
appeal, Eagle would not have been entitled to a new trial. 	At most, he would
have been entitled to a new, public arraignment proceeding. 	For this reason, this
case is distinguishable from both Orange and Morris. 	In contrast to those cases,
Eagle is unable to establish prejudice from his appellate counsel's failure to raise
the claim on direct appeal. 	Eagle's failure to show prejudice is also fatal to this
claim.
Finally, we note that the only collateral relief that Eagle seeks is a new
trial. 	He does not request any lesser relief, such as a new, public arraignment
proceeding. 	Thus, even if we concluded that Eagle established a successful
ineffective assistance of counsel claim, he fails to show that he is entitled to the
sole relief he requests. 	See In re Pers. Restraint of Snivelv. 180 Wn.2d 28, 32,
320 P.2d 1107 (2014) (per curiam); see also In re Pet, of Reyes, 184 Wn.2d 340,
348, 358 P.3d 394 (2015).
We deny the petition.
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WE CONCUR:
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21