In re Pers. Restraint of Rhem

• Court: Washington Supreme Court
• Decided: May 11, 2017
• Docket: 92698-1
• Status: Published

Opinion

/1=~1"1::"E This opinion was file for record

/ ;;. .~• .:.. : ... " " . . . . coum; avn o, WA8HINGfflN at ~O(\ OJI\ on • · 1 . DATE. MAY t 1 2a1; 1 ·9:?\41 h~ c. q. Q111iFJUSTICS j I -rc,r SUSAN L. CARLSON SUPREME COURT CLERK IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Personal Restraint of ) No. 92698-1 ) MICHAEL LOUIS RHEM, ) En Banc ) Petitioner. ) __________ ) Filed MAY 1 1 2017

JOHNSON, J.-This case involves a constitutional public trial closure claim

where the central issue is procedurally whether Michael Rhem adequately raised an

ineffective assistance of appellate counsel claim by including in his pro se reply

brief, "Rhem would also request that this Court consider sua [s]ponte the

ineffective appellate argument that the State broaches in their response. Or allow

additional briefing." Reply Br. of Pet'r at 7; U.S. CONST. amend. VI. The Court of

Appeals determined, among other things, that ( 1) Rhem did not adequately raise an

ineffective assistance of appellate counsel claim, (2) he did not demonstrate actual

and substantial prejudice in supporting his claim of a violation of the right to a

public trial, and (3) he did not timely raise a federal public trial right violation. In

re Pers. Restraint ofRhem, No. 35195-1-II (Wash. Ct. App. Dec. 22, 2015)

(unpublished), http://www.courts.wa.gov/opinions/pdf/35195-l.15.pdf, review

granted, 186 Wn.2d 1017, 383 P.3d 1028 (2016). We affirm. In re Pers. Restraint ofRhem, No. 92698-1

FACTS AND PROCEDURAL HISTORY

In 2000, a jury acquitted Rhem and an accomplice, Kimothy Wynn, of drive-

by shooting and convicted them of two counts of first degree assault with firearm

sentence enhancements and first degree unlawful possession of a firearm. The

Court of Appeals reversed due to prejudicially defective jury instructions. Rhem

and Wynn were retried on two counts of first degree assault and one count of first

degree unlawful possession of a firearm. The trial court closed the courtroom to

spectators during jury selection; this included members ofRhem's family. The jury

convicted Rhem and Wynn. Division Two of the Court of Appeals affirmed the

convictions and sentences on direct appeal. No public trial closure issue was raised

in the appeal. The appeal mandated on February 9, 2006.

On July 21, 2006, Rhem, acting pro se, timely filed a personal restraint

petition (PRP) in the Court of Appeals. Rhem raised claims that his right to a

public trial was violated, that defense counsel was ineffective in failing to propose

proper instructions, and that his right to confrontation was violated. If the court

found for Rhem on any of those claims, he argued, the court should determine

whether he was denied effective assistance of trial counsel under the Sixth

Amendment to the United States Constitution. The State disputed the courtroom

closure allegation and further argued that since Rhem did not raise an issue that

appellate counsel was ineffective, he could not demonstrate prejudice. Rhem filed

2 In re Pers. Restraint ofRhem, No. 92698-1

a reply arguing that the courtroom was closed and that the closure is structural

error, thus, he does not need to demonstrate prejudice. Rhem then stated in

conclusion, "Rhem would also request that this Court consider sua [s]ponte the

ineffective appellate argument that the State broaches in their response. Or allow

additional briefing." Reply Br. of Pet'r at 7.

In 2008, the Court of Appeals appointed Jeffrey Ellis to represent Rhem.

From 2008 to 2013, the case was stayed numerous times and the Court of Appeals

asked for supplemental briefing regarding a number of public trial right cases

decided during that time.

In October 2013, the Court of Appeals remanded the case to the superior court

for a reference hearing on the public trial issue with directions to make findings of

facts and conclusions of law as to the following issues: (1) whether and to what

extent the trial court closed the courtroom to the public during voir dire, (2) whether

petitioner's family members were excluded, (3) whether petitioner requested or

objected to the closure, (4) whether the trial court examined the Bone-Club 1 factors

before ordering the closure, (5) the duration of the closure, and (6) if there was a

closure, whether the closure resulted in actual and substantial prejudice to the

outcome ofRhem's trial. Rhem, slip op. at 10. After taking testimony at the reference

1 State v. Bone-Club, 128 Wn.2d 254,906 P.2d 325 (1995).

3 In re Pers. Restraint ofRhem, No. 92698-1

hearing, the superior court made the following findings and conclusions: (1) the

courtroom was effectively closed during all or most of jury selection, (2) Rhem's

family members and other members of the public were excluded from the courtroom,

(3) counsel neither requested nor objected to the closure, (4) the trial court did not

conduct a Bone-Club analysis before closing the courtroom, and (5) there was no

evidence of actual and substantial prejudice to Rhem's trial. Rhem, slip op. at 10.

The Court of Appeals then directed the parties to file supplemental briefing

on the impact, if any, of In re Personal Restraint of Speight, 182 Wn.2d 103, 340

P.3d 207 (2014) (plurality opinion), and In re Personal Restraint of Coggin, 182

Wn.2d 115, 340 P.3d 810 (2014) (plurality opinion). After briefs were submitted,

the court denied Rhem's petition on all issues. The Court of Appeals determined,

among other things, that (1) Rhem did not raise an ineffective assistance of

appellate counsel claim, (2) he did not demonstrate actual and substantial prejudice

for the violation of his right to a public trial, and (3) he did not timely raise a

federal public trial rights violation. We granted review on the public trial issues

only. Both parties filed supplemental briefing. 2

2 On December 29, 2016, the State filed a motion to strike petitioner's supplemental brief because it raised a new claim. The State argued that Rhem failed to raise a claim of ineffective assistance of appellate counsel in his initial petition and did not timely amend his petition. Also, the State argued Rhem failed to comply with RAP 13. 7 and 17.3-his motion for discretionary review did not have a concise statement of the issues or supporting argument. The State's motion to strike was passed to the merits. Given our resolution of the issues, we deny the State's motion to strike.

4 In re Pers. Restraint ofRhem, No. 92698-1

ANALYSIS

The central issue in this case is whether procedurally Rhem adequately

raised an ineffective assistance of appellate counsel claim where he provided in his

reply brief, "Rhem would also request that this Court consider sua [s]ponte the

ineffective appellate argument that the State broaches in their response. Or allow

additional briefing." Reply Br. of Pet'r at 7. Rhem argues the claim was timely and

adequately raised because his statement constituted an amendment to his PRP and

it was made within the one-year time limit for collateral attack. If Rhem

demonstrates he adequately raised this claim, no dispute exists that he would be

entitled to relief. In re Pers. Restraint of Orange, 152 Wn.2d 795, 814, 100 P.3d

291 (2004) (finding prejudice when appellate counsel failed to raise a public trial

violation since the error would have been presumptively prejudicial on direct

appeal); see also In re Pers. Restraint ofMorris, 176 Wn.2d 157, 166,288 P.3d

1140 (2012) (plurality opinion).

In Rhem's PRP filed in the Court of Appeals, he claimed that his right to a

public trial was violated, that defense counsel was ineffective in failing to propose

proper instructions, and that his right to confrontation was violated. U.S. CONST.

amend. VI. If the court found for Rhem on any of those claims, he argued, the

court should determine whether he was denied effective assistance of trial counsel

under the Sixth Amendment.

5 In re Pers. Restraint ofRhem, No. 92698-1

Under the rules, a petitioner can amend an initial PRP and raise new grounds

for relief, without requesting a formal amendment, as long as the brief is timely

filed and the new issue is adequately raised. See RAP 16.8(e); RAP 12.l(a); RAP

16.7(a)(2); In re Pers. Restraint ofDavis, 151 Wn. App. 331,335 n.6, 211 P.3d

1055 (2009) ("Although Davis did not move to amend his PRP, his opening brief

serves as an amended PRP because it adds a claim never raised in his PRP.").

Here, there is no dispute that Rhem' s reply brief was filed within the one-year time

limit for collateral attack; thus, we focus our analysis on whether the issue was

adequately raised.

First, we have generally held that we will not review an issue that was raised

and argued for the first time in a reply brief. In re Marriage ofSacco, 114 Wn.2d

1, 5, 784 P.2d 1266 (1990) (citing RAP 10.3(c)). Here, Rhem's ineffective

assistance of appellate counsel claim was raised, if raised at all, for the first time in

his pro se reply brief and made without supporting argument. Under this analysis,

the statement does not properly raise the issue.

Second, even if we were to look past our precedent regarding raising new

issues in a reply brief, a claim must still be adequately supported. Under our rules,

an "appellate court will decide a case only on the basis of issues set forth by the

parties in their briefs." RAP 12.l(a). A petition should set forth "[a] statement of

(i) the facts upon which the claim of unlawful restraint of petitioner is based and

6 In re Pers. Restraint ofRhem, No. 92698-1

the evidence available to support the factual allegations, and (ii) why the

petitioner[']s restraint is unlawful for one or more of the reasons specified in rule

16.4(c)." RAP 16.7(a)(2). The PRP must contain more than a conclusory allegation

or merely a claim in broad general terms. See In re Pers. Restraint of Williams, 111

Wn.2d 353, 364-65, 759 P.2d 436 (1988). Here, because Rhem's ineffective

assistance of appellate counsel claim was not supported by argument,3 he has failed

to comply with the rules.

Despite the noncompliance with our procedural requirements, Rhem urges

us to "liberally" construe his statement because he was a prose petitioner. Mot. for

Discr. Review at 5. He relies on federal case law to support a more relaxed

pleading standard. However, in our cases, we have established a stricter approach

that pro se petitioners must comply with applicable rules and statutes and,

importantly, we hold them to the same standard as an attorney. In re Pers.

Restraint ofBonds, 165 Wn.2d 135, 143, 196 P.3d 672 (2008) (plurality opinion).

3 The next time Rhem mentioned an ineffective assistance of counsel claim was in his surreply regarding Coggin and Speight in 2015-almost eight years after his initial PRP. There, he says that his case is "nearly a carbon copy of Orange." Pet'r's Surreply at 4. He further expands this statement in a footnote saying, "In his prose Reply, Mr. Rhem asked this Court to fully apply Orange and consider 'the ineffective assistance claim' that flows from Orange, and which was identified by the State in its response." Pet'r's Surreply at 4 n. l. However, in Rhem's pro se reply, there was no argument that we should fully apply Orange. Instead, there was one sentence in the conclusion of his reply brief that asked the court to review the issue sua sponte.

7 In re Pers. Restraint ofRhem, No. 92698-1

Appellate courts should not be placed in a role of crafting issues for the

parties; thus, mere "'naked castings into the constitutional sea are not sufficient to

command judicial consideration and discussion."' Williams, 111 Wn.2d at 365

(internal quotation marks omitted) (quoting In re Rosier, 105 Wn.2d 606, 616, 717

P.2d 1353 (1986)). Although this result seems harsh, our prior cases have dealt

with the requirements regarding timely raising issues in a PRP. In Bonds, the

defendant timely filed a PRP asserting a violation of his confrontation rights and

arguing ineffective assistance of counsel. The State filed a reply. The acting chief

judge did not rule on Bonds' s petition or appoint counsel until a few days before

the one-year time bar had passed. Bonds' s counsel then moved to amend the PRP,

adding a public trial right violation. We determined that Bonds' s public trial right

violation was time barred and that, in these cases, "the issues generally are limited

to those raised in the petition and ... nothing prevented Bonds from timely

asserting the public trial issue himself." Bonds, 165 Wn.2d at 143. Although the

Court of Appeals failed to appoint counsel until a few days before the one-year

time bar, we still held Bonds to the same standard as an attorney. Similarly here,

counsel was not appointed until after the one-year time bar, and Rhem could have

raised the issue and, in fact, did adequately raise other issues he sought relief

under. Thus, we agree with the Court of Appeals and hold that Rhem failed to raise

an ineffective assistance of appellate counsel claim, and affirm.

8 In re Pers. Restraint ofRhem, No. 92698-1

Rhem asserts other arguments regarding the violation of his right to a public

trial. He argues that the Court of Appeals erred when it (1) applied the actual and

substantial prejudice standard and (2) failed to consider, as prejudice, the facts that

his family could not participate in the jury selection process, and that prospective

jurors could see that his family was not participating. 4

We have recently held that where a public trial violation is raised for the first

time in a PRP, actual and substantial prejudice must be shown. 5 Coggin, 182

Wn.2d at 120; Speight, 182 Wn.2d at 107. The exception, discussed above, is when

the public trial right violation is raised through an ineffective assistance of

appellate counsel claim, where prejudice is presumed. Since we decide Rhem has

not raised an ineffectiveness of appellate counsel claim, under those cases, Rhem

must demonstrate actual and substantial prejudice in order to obtain relief.

4 Rhem also argued a public trial claim under the federal constitution. The Court of Appeals accurately determined that Rhem's federal claim is untimely because it was not raised within the one-year time limit for collateral attack.

5 Coggin was a plurality decision with then Chief Justice Madsen writing a concurring opinion agreeing that prejudice must be shown in a PRP where there is a public trial rights violation and the error was not invited. She stated, "Nevertheless, because guidance is needed I would agree with the majority that the error here, failure to engage in the analysis outlined in State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995), requires a petitioner in a personal restraint petition to prove prejudice unless he can demonstrate that the error in his case 'infect[ ed] the entire trial process' and deprive the defendant of 'basic protections,' without which 'no criminal punishment may be regarded as fundamentally fair."' Coggin, 182 Wn.2d at 123 (Madsen, C.J., concurring) (alteration in original) (internal quotation marks omitted) (quoting Neder v. United States, 527 U.S. 1, 8-9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)).

9 In re Pers. Restraint ofRhem, No. 92698-1

The Court of Appeals below correctly relied on the trial court findings from

the reference hearing that Rhem presented no evidence of actual and substantial

prejudice, nor did he challenge the trial court's reference hearing finding on this

point. Rhem argues in a supplemental brief a slightly different theory that prejudice

was shown because his family, who was excluded, could not participate in the jury

selection process, and prospective jurors could see that his family was not

participating. This assertion is insufficient to overturn the finding by the trial court.

Even if we were to consider Rhem' s arguments, Rhem fails to show the

courtroom closure caused him actual and substantial prejudice. Rhem analogizes

the facts of his case to Orange. Although Rhem's family was similarly excluded

from voir dire, Orange involved a different issue and dealt with a public trial

violation that was properly raised through an ineffective assistance of appellate

counsel claim. The court did not find that the exclusion of Orange's family was

evidence of prejudice. Thus, Orange does not support Rhem's argument.

We affirm the Court of Appeals' decision and hold that (1) Rhem did not

raise an ineffective assistance of appellate counsel claim and (2) Rhem has not

demonstrated actual and substantial prejudice to warrant reversal of his other

10 In re Pers. Restraint ofRhem, No. 92698-1

public trial right claims.

(

WE CONCUR:

11 In re Pers. Restraint ofRhem

No. 92698-1

OWENS, J. (dissenting) - "Although the public trial right may not be

absolute, protection of this basic constitutional right clearly calls for a trial court to

resist a closure ... except under the most unusual circumstances." State v. Bone-

Club, 128 Wn.2d 254, 259, 906 P.2d 325 (1995). In this case, the majority finds that a

defendant who has suffered a violation of his public trial right can be denied a remedy

if that defendant raised, but failed to adequately support, an ineffective assistance of

appellate counsel claim in his pro se personal restraint petition. See CONST. amend.

VI. I would hold that any violation of the public trial right is structural error, is

prejudicial on its face, and requires relief.

We presume prejudice when a violation of the public trial right occurs. Id. at

261-62. It is structural error to close a courtroom without adequate justification,

violating the right to a public trial. State v. Wise, 176 Wn.2d 1, 14, 288 P.3d 1113

(2012). Structural error is a defect "that 'affect[s] the framework within which the

trial proceeds, rather than simply an error in the trial process itself."' Id. at 13-14 In re Pers. Restraint of Rhem, No. 92698-1 Owens, J., Dissenting

(alteration in original) (quoting Arizona v. Fulminante, 499 U.S. 279,310, 111 S. Ct.

1246, 113 L. Ed. 2d 302 (1991)). Such an "uninvited, unwaived violation of this

important right [i.e., structural error] is always inherently prejudicial." In re Pers.

Restraint of Coggin, 182 Wn.2d 115,126,340 P.3d 810 (2014) (Stephens, J.,

dissenting).

Here, the court violated Rhem's public trial right. It removed both Rhem's

family and the public without considering any of the Bone-Club factors, constituting

an erroneous closure. Since this erroneous closure comes before us unchallenged, it is

a verity on appeal. State v. Alexander, 125 Wn.2d 717, 723, 888 P.2d 1169 (1995).

Further, this erroneous closure is a violation of Rhem's public trial right, structural

error, and prejudicial on its face. See, e.g., State v. Frawley, 181 Wn.2d 452,459,334

P.3d 1022 (2014) (C. Johnson, J., lead opinion); Wise, 176 Wn.2d at 13; In re Pers.

Restraint of Orange, 152 Wn.2d 795, 814, 100 P.3d 291 (2004). Rhem "'should not

be required to prove specific prejudice in order to obtain relief'" from an improper

closure. Wise, 176 Wn.2d at 14 (quoting Waller v. Georgia, 467 U.S. 39, 49, 104 S.

Ct. 2210, 81 L. Ed. 2d 31 (1984)). A violation itself is enough.

After 11 years of litigation, Rhem asks us to remedy a structural error in his

trial and the majority denies his request on procedural grounds. He filed his first

timely personal restraint petition on July 21, 2006. Division Two of the Court of

Appeals stayed this petition, awaiting our conclusions from other public trial rights

2 In re Pers. Restraint of Rhem, No. 92698-1 Owens, J., Dissenting

cases. After the initial stay was lifted, Rhem's petition was stayed and lifted three

more times, each calling for additional briefing or evidentiary hearings regarding

another case before this court. The Court of Appeals finally denied his petition in

2015 after In re Personal Restraint of Coggin and In re Personal Restraint of Speight,

182 Wn.2d 103, 340 P.3d 207 (2014) (plurality opinion), and this court denies it as

well. I disagree and would hold that Rhem's right to a public trial was violated, and

that this constitutes structural error prejudicial on its face, and would grant Rhem's

personal restraint petition. To do otherwise would be to inadequately defend the

public trial rights of Rhem and ignore the prejudice inherent in public trial right

violations. I respectfully dissent.

3 In re Pers. Restraint of Rhem, No. 92698-1 Owens, J., Dissenting