In re Pers. Restraint of Erhart ( 2015 )

T~~ opinion was filed for record
at $4X>~ on.Me128 Wash. 2d 254, 258-59, 906 P.2d 325 (1995). The jury found
No. 89107-9 PAGE2
Erhart guilty of multiple sex offenses, and the trial court imposed an exceptional
sentence. Erhart did not raise a public trial issue on direct appeal. The Court of
Appeals affirmed the convictions but reversed the exceptional sentence and remanded
for resentencing. After resentencing, the judgment and sentence became final in 2008.
In 20 10 Erhart filed a motion in superior court to vacate the judgment,
arguing for the first time that his constitutional right to a public trial was violated
when the superior court interviewed prospective jurors in chambers without
conducting a Bone-Club analysis. 1 The superior court transferred the motion to the
Court of Appeals for consideration as a personal restraint petition pursuant to CrR
7.8(c)(2), and the acting chief judge dismissed the petition as untimely. Erhart then
filed a motion for discretionary review in this court, which was stayed pending this
court's decisions in Order, In re Personal Restraint of Pink, No .. 83831-3 (Wash.
Apr. 9, 2014) (order granting personal restraint petitions and remanding to superior
court), In re Personal Restraint of Speight, 182 Wash. 2d 103, 340 P.3d 207 (2014), and
In re Personal Restraint of Coggin, 182 Wash. 2d 115, 340 P.3d 810 (2014). The stay
was lifted after those decisions became final. Meanwhile, Erhart filed a motion to
amend his motion for discretionary review with a claim of ineffective assistance of
appellate counsel and a motion to supplement the record with a log of courtroom
proceedings that documents in-chambers interviews of prospective jurors. We now
1
A criminal defendant's right to a public trial is guaranteed under article I, section
22 of the Washington Constitution and the Sixth Amendment to the United States
Constitution. See Bone-Club, 128 Wash. 2d at 257, 259-60; Waller v. Georgia, 467 U.S. 39,
46-47, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984).
No. 89107-9 PAGE3
grant discretionary review, and for reasons discussed below, we affirm the Court of
Appeals.
ANALYSIS
Because Erhart filed his personal restraint petition more than one year after
his judgment and sentence became final, the petition is untimely under RCW
10.73.090(1) unless the judgment and sentence is facially invalid or was entered
without competent jurisdiction, or unless Erhart asserts solely grounds for relief
exempt from the one year limit under RCW 10.73.100.In re Pers. Restraint ofAdams,
178 Wash. 2d 417, 422, 309 P.3d 451 (2013). Violation of the right to a public trial does
not implicate the trial court's jurisdiction or the facial validity of the judgment and
sentence for purposes ofRCW 10.73.090(1). And such a claim in itself is not among
the exemptions to the one-year time bar listed in RCW 10.73.100. 2
But Erhart argues that his public trial claim falls within RCW 10.73.100(6)
because the Court of Appeals public trial decision in State v. Wise, 148 Wash. App. 425,
200 P.3d 266 (2009), rev 'd, 176 Wash. 2d 1, 288 P.3d 1113 (2012), constitutes a
significant change in the law that is material and retroactively applicable to his case.
But as the citation indicates, this court reversed the Court of Appeals decision in Wise,
and so that decision represents no precedential change in the law. Moreover, this
court's decision in Wise was firmly grounded on this court's well-established
precedent concerning the public trial right in relation to jury selection. See Wise, 176
Wash. 2d at 11-12; State v. Strode, 167 Wash. 2d 222, 227, 217 P.3d 310 (2009); In re
Pers. Restraint of Orange, 152 Wash. 2d 795, 804, 100 P.3d 291 (2004). Wise thus did
2
The exemptions are (1) newly discovered evidence, (2) a conviction under an
unconstitutional statute, (3) a double jeopardy violation, (4) insufficient evidence to
support a conviction after plea of not guilty, (5) a sentence in excess of the trial court's
jurisdiction, and (6) a significant change in the law that is material and retroactively
applicable. RCW 10.73.100.
No. 89107-9 PAGE4
not overrule any previously controlling decision so as to make it a significant change
in the law. See In re Pers. Restraint of Domingo, 155 Wash. 2d 356, 366, 119 P.3d 816
(2005). Erhart's similar assertion that Strode constituted a significant change in the
law fails for the same reason; he could have relied on Orange or Bone-Club to assert a
public trial claim on direct appeal or in a timely personal restraint petition, but he did
neither. Erhart thus fails to demonstrate the existence of a significant change in the
law exempting his public trial claim from the one-year limit on collateral relief,
making his personal restraint petition untimely. 3
We affirm.
3
Erhart's motion to add a new claim of ineffective assistance of appellate counsel is
denied. Such a claim is time barred because it falls within neither RCW 10.73.090(1) nor
RCW 10.73.100. See In re Pers. Restraint ofStoudmire, 141 Wash. 2d 342, 349, 5 P.3d 1240
(2000). Erhart's motion to supplement the record with the courtroom log is denied as moot.
Although the State does not oppose the motion to supplement-conceding that prospective
jurors were interviewed in chambers-Erhart's personal restraint petition is untimely even
if he would have been entitled to relief had the claim been timely asserted.