State Of Washington v. Chad E. Christensen ( 2018 )

Filed
Washington State
Court of Appeals
Division Two
January 9, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 49764-6-II
Respondent,
v.
CHAD ERNEST CHRISTENSEN, UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — Chad Ernest Christensen appeals from the trial court’s denial of his CrR
7.8(b)(5) motion for relief from the judgment and sentence imposed following his conviction of
first degree child molestation. Christensen’s court-appointed attorney has filed a motion to
withdraw on the ground that there is no basis for a good faith argument on review. We grant the
motion to withdraw and dismiss the appeal.
FACTS
In 2012, Christensen was convicted of first degree child molestation following a jury
trial. We affirmed Christensen’s conviction on direct appeal. State v. Christensen, noted at 181
Wn. App. 1002 (2014) (unpublished).
In 2015, Christensen filed a CrR 7.8(b)(5) motion for relief from his judgment and
sentence. Christensen argued in his motion that (1) his public trial right was violated when either
the bailiff or trial counsel asked Christensen’s father, Chip Christensen, to give up his seat in the
courtroom to make room for potential jurors, and (2) defense counsel was ineffective for failing
No. 49764-6-II
to object to the courtroom closure. Christensen attached to his CrR 7.8 motion a sworn
declaration from his father, which stated in relevant part:
(4) Just prior to the venire entering the courtroom the prosecutor informed the
court that “There was a larger than normal venire and there wouldn’t be
enough room for everyone.” I was then asked to leave. I thought that was
normal procedure, so I left the courtroom.
....
(6) I did however remain in the courthouse to be able to go back into the
courtroom once seats became available.
....
(8) After selection of the jurors was completed the court went to lunch. It was
not until after they returned from lunch was I allowed to re-enter the
courtroom. I was excluded for the entire duration of the jury selection.
Clerk’s Papers (CP) at 104-05.
The trial court conducted an evidentiary hearing and took testimony regarding the alleged
closure. Following the hearing, the trial court dismissed Christensen’s CrR 7.8(b)(5) motion and
later entered its findings of fact and conclusions of law, which stated in relevant part:
FINDINGS OF FACT
1.4. Christensen and Chip Christensen entered the courtroom together the
morning of day one of Christensen’s jury trial through the unlocked public
hallway entrance to the courtroom.
1.5. The standard protocol for opening up the courtroom to the public is for the
courtroom clerk to enter through the nonpublic entrance, turn on the back
lights, walk to the public entrance, open the doors, and using the key unlock
both doors for the public entrance.
1.6. The only way to lock the doors from the public hallway to the entrance of
the courtroom is for a person to manually lock the doors from the outside
with a key.
1.7. The courtroom clerk, judge and court administrator have keys to the
courtrooms.
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1.8. For the unlocked public entrance doors of the courtroom to become locked
while court was in session, it would require a person to go outside the
courtroom, and physically lock the courtroom doors.
....
1.11. Chip Christensen was asked to move from his seat in the first pew, directly
behind the defense table, in order to accommodate the seating of the 51
prospective jurors.
1.12. Chip Christensen was not asked to leave the courtroom.
....
CONCLUSIONS OF LAW
Based on these findings the court draws the following conclusions:
2.2. Christensen has not met his burden to show, by competent evidence, that there
was in fact a courtroom closure.
....
CP at 344-45. Christensen appeals from the order denying his CrR 7.8 motion.
ANALYSIS
RAP 15.2(i) provides that court-appointed counsel should file a motion to withdraw “[i]f
counsel can find no basis for a good faith argument on review.” Pursuant to Anders v.
California, 386 U.S. 738, 744, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v. Theobald, 78
Wn.2d 184, 185, 470 P.2d 188 (1970), counsel’s motion to withdraw must
“be accompanied by a brief referring to anything in the record that might arguably
support the appeal. A copy of counsel’s brief should be furnished the indigent and
time allowed him to raise any points that he chooses; the court—not counsel—
then proceeds, after a full examination of all the proceedings, to decide whether
the case is wholly frivolous.”
State v. Hairston, 133 Wn.2d 534, 538, 946 P.2d 397 (1997) (alteration in original) (quoting
Anders, 386 U.S. at 744). This procedure has been followed. Christensen’s counsel on appeal
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filed a brief with the withdrawal motion. Christensen was served with a copy of the brief and
informed of his right to file a statement of additional grounds for review.
The material facts are accurately set forth in counsel’s brief in support of the motion to
withdraw. We have reviewed the briefs filed in this court and have independently reviewed the
entire record. We specifically considered the following potential issues raised by counsel:
1. [Whether a]ppellant was denied his constitutional right to a public trial
because, during voir dire, appellant’s father was asked to give up his seat in favor
of potential jurors.
2. [Whether a]ppellant was denied his constitutional right to effective assistance
of counsel because his attorney failed to object to a closure of the courtroom during
voir dire.
3. [Whether a]ppellant was denied his constitutional right to effective assistance
of appellate counsel because his attorney on appeal failed to assign error or argue a
denial of appellant’s public trial right.
Motion to Withdraw at 3.
We generally review a trial court’s denial of a CrR 7.8 motion to vacate a conviction for
an abuse of discretion. State v. Scott, 150 Wn. App. 281, 290, 207 P.3d 495 (2009). Where a
trial court weighs evidence following a CrR 7.8 hearing, we review its findings of fact for
substantial evidence and its conclusions of law de novo. State v. Schwab, 141 Wn. App. 85, 91,
167 P.3d 1225 (2007). Upon our independent review of the record, we conclude that substantial
evidence supports each of the trial court’s findings of fact.
Regarding the first potential issue raised by counsel, there is no good faith argument that
the trial court erred by concluding Christensen failed to show that a courtroom closure had
occurred. To succeed in his public trial violation claim, Christensen carried the burden of
showing that a courtroom closure had occurred. State v. Love, 183 Wn.2d 598, 605, 354 P.3d
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No. 49764-6-II
841 (2015), cert. denied, 136 S. Ct. 1524 (2016). “A closure . . . occurs when the public is
excluded from particular proceedings within a courtroom.” State v. Anderson, 187 Wn. App.
706, 712, 350 P.3d 255 (citing State v. Gomez, 183 Wn.2d 29, 33-34, 347 P.3d 876 (2015); State
v. Lormor, 172 Wn.2d 85, 92, 257 P.3d 624 (2011)), remanded, 184 Wn.2d 1009 (2015). Here,
the trial court’s factual findings that Christensen’s father was asked to give up his seat but not to
leave the courtroom, together with its findings regarding the process and procedures for locking
the courtroom’s publicly accessible doors, clearly support the conclusion that no courtroom
closure had occurred. Accordingly, there is no good faith argument that the trial court erred by
concluding that a courtroom closure did not occur during Christensen’s trial.
Regarding the second potential issue raised by counsel, there is no good faith argument
that the trial court erred by concluding Christensen’s trial counsel was not deficient for failing to
object to a courtroom closure. To demonstrate ineffective assistance of counsel, Christensen
must show both deficient performance and resulting prejudice. State v. Reichenbach, 153 Wn.2d
126, 130, 101 P.3d 80 (2004). To show deficient performance, Christensen must show that
defense counsel’s performance fell below an objective standard of reasonableness. Reichenbach,
153 Wn.2d at 130. Here, Christensen cannot show that his defense counsel performed
deficiently for failing to object to a courtroom closure because no courtroom closure had
occurred. Accordingly, there is no good faith argument that the trial court erred by concluding
Christensen’s trial counsel did not perform deficiently.
Finally, regarding the third potential issue raise by counsel, there is no good faith
argument that appellate counsel was ineffective for failing to raise a public trial violation on
direct appeal. First, Christensen did not raise an ineffective assistance of appellate counsel claim
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No. 49764-6-II
in his CrR 7.8 motion. Accordingly, there is no ruling on that issue for us to review. Second,
even assuming that the issue could be raised in this appeal, there is nothing in the direct appeal
record that would have alerted appellate counsel to a potential public trial right violation claim.
Moreover, as addressed above, there was no courtroom closure and, thus, appellate counsel could
not have performed deficiently for failing to raise a public trial violation claim.
Based on the above, the potential issues raised by counsel are wholly frivolous. And our
independent review of the record does not reveal any potential nonfrivolous issues that may be
raised in this appeal. Accordingly, we grant counsel’s motion to withdraw and dismiss
Christensen’s appeal.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Worswick, J.
We concur:
Bjorgen, C.J.
Melnick, J.
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