Filed Washington State Court of Appeals Division Two
April 10, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In re The Personal Restraint Petition of: No. 49044-7-II
SERGEY V. GENSITSKIY,
Petitioner. UNPUBLISHED OPINION
SUTTON, J. — In this personal restraint petition (PRP), Sergey Gensitskiy challenges his
convictions for four counts of child molestation. Gensitskiy claims that (1) the prosecutor engaged
in improper ex parte communication by obtaining a pretrial order authorizing review of the jury
book and jury list from a judge without providing notice or opportunity to respond, (2) the ex parte
communication violated his right to a public trial, (3) the ex parte communication violated his right
to be present at critical proceedings, and (4) he received ineffective assistance of trial and appellate
counsel. We deny Gensitskiy’s petition for relief.
FACTS
In 2011, the State charged Gensitskiy with a total of twelve counts of sex offenses against
five different victims, including CSG.1
1 We use initials to protect the witness’s identity. General Order 2011-1 of Division II, In Re The Use Of Initials Or Pseudonyms For Child Witnesses In Sex Crime Cases, available at: http://www.courts.wa.gov/appellate_trial_courts/.
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I. PROPOSED ORDER AUTHORIZING REVIEW OF JURY BOOK AND JURY LIST (jury book order)
On July 25, 2012, an omnibus hearing was held to address discovery and pretrial issues in
Gensitskiy’s case. The case was considered ready for trial the following week. Sometime after
the hearing, the deputy prosecuting attorney in Gensitskiy’s case, Anna Klein, sent a proposed
order authorizing review of the jury book and jury list to the court for signature. As was Klein’s
practice, the proposed order was sent from the prosecutor’s office with a runner for signature by
an available judge. The prosecutor did not meet with the judge in order to obtain a signature for
the proposed order.
The proposed order allowed Klein to “remove the juror book and jury list from the [c]ourt
for her personal review and immediate return to the [c]ourt.” Declaration of Tom Maybrown,
Appx. E (Order Authorizing Review of Jury Book (Including Jury List), filed Clark County
Superior Ct., July 25, 2012 (jury book order). The jury book order also stated that “no copies will
be made and no other person shall be allowed to review the material and the book shall be returned
to the [c]ourt within twenty four hours[.]” Maybrown Decl., Appx. E. The jury book order was
signed by Judge Stahnke. Judge Stahnke was not the assigned trial judge for Gensitskiy’s trial.
II. TRIAL TESTIMONY
All the victims testified at trial. Because their testimony is not relevant to the issues
Gensitskiy raises in his PRP, we do not recount the details here. One of the victims recanted his
prior statements. Another victim testified that at one point she believed the allegations she had
made but currently questioned whether they were true.
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Erin Haley is a child and family therapist. At the time of trial, Haley was seeing CSG
weekly or every other week. Haley testified that the “initial concerns [CSG] came in for were
related to sexual abuse.” CD Proceedings, Vol. 2 at 284 (VRP). Haley testified as follows:
[STATE]: Okay. So did you ever find out from [CSG] what exactly it was that had happened to her sexually?
[HALEY]: Yes.
2 VRP at 284. Gensitskiy’s counsel objected to Haley testifying as to CSG’s statements, but the
trial court overruled the objection.
Haley also testified,
[HALEY]: Well, I’ve offered a few diagnoses. Originally when I first met with her on November 3rd, 2010, I offered a diagnosis of sexual abuse of a child, which indicates she was a victim of sexual abuse. And that is how we treat children who come in through our specific sexual abuse grant.
....
[HALEY]: The diagnosis offered for [CSG] later in her treatment was posttraumatic stress disorder and also major depressive disorder.
[STATE]: And can you explain what those are, first of all?
[HALEY]: Sure. So posttraumatic stress disorder is a mental health condition that can come on after someone experiences a traumatic event. And it includes responses such as helplessness, extreme fear, anger, and those reactions are quite common to a traumatic event, though the symptoms in posttraumatic stress disorder last at least one month after the trauma and tend to either worsen or get to a level where they’re interfering significantly in someone’s life’s functioning. So that’s posttraumatic stress disorder.
2 VRP at 287-88. Gensitskiy did not object to any of the above testimony. On redirect, the
following exchanges took place:
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[STATE]: Okay. And what made you feel that her posttraumatic stress disorder is associated with a (sic) sexual abuse?
[HALEY]: Well, [CSG] had disclosed that she had experienced sexual abuse and that her flashbacks as part of her posttraumatic stress disorder were specific to the sexual abuse trauma.
[STATE]: And are her nightmares regarding any specific person or issue?
[HALEY]: Some of the nightmares [CSG] has endorsed are related to fearfulness about her father. They were more generalized, which is common, particularly for children. The nightmares were generally about her father hurting her, killing her, just fearful dreams about her father.
2 VRP at 308-09. Again, Gensitskiy did not object to Haley’s testimony. Finally, on recross,
Gensitskiy’s counsel engaged in the following exchange with Haley:
[COUNSEL]: Is there any means as a counselor that you can ascertain as to whether or not the complaints of abuse are accurate?
[HALEY]: I would say that – I guess I’m having a hard time answering your question. The way I look at it is, it’s not my job to investigate the allegations of the abuse. And so I take in the disclosures that individuals share with me along with some collaborative information to make my determination. But again, I’m not determining whether it’s true or not. My job is to treat the individual with the symptoms that they come in for.
[COUNSEL]: So you’re treating the sym – I don’t want to put words in your mouth, but sounds like you’re saying I’m treating the symptoms, not the allegations?
[HALEY]: I guess I’m not sure how I would treat allegations, so I think that’s fair to say I’m treating the symptoms.
2 VRP at 314.
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III. VERDICT AND DIRECT APPEAL
The jury found Gensitskiy not guilty of two of the charged counts. The jury found
Gensitskiy guilty of the remaining ten counts. Gensitskiy appealed.
On direct appeal, Division One of this court reversed six of Gensitskiy’s convictions based
on defects in the charging documents. State v. Gensitskiy, noted at 182 Wn. App. 1016 (2014).
Our Supreme Court denied review. State v. Gensitskiy, 182 Wn.2d 1013 (Mar. 4, 2015) (ruling
denying review). Therefore, Gensitskiy’s only remaining convictions at issue in this PRP are four
counts of child molestation concerning CSG.
IV. PERSONAL RESTRAINT PETITION
Gensitskiy filed a timely PRP challenging his remaining convictions. Gensitskiy’s trial
counsel, Charles Buckley, filed a declaration in support of Gensitskiy’s PRP, in which he states
that he was never given any notice that Klein intended to obtain the jury book order. Buckley also
stated, “If I had known that the prosecutor intended to obtain the juror list and jury book on July
25, 2012, I would have insisted that these same benefits be given to the defense.” Decl. of Charles
Buckley Jr. at 3. In his own declaration, Gensitskiy states that he had no knowledge of the jury
book order and only found out about it when his current attorney showed it to him. He also claims
that, if he had notice that Klein had intended to obtain the jury book order, he would have insisted
that his attorney do the same.
ANALYSIS
I. LEGAL PRINCIPLES
To be entitled to relief in a PRP, the petitioner must establish either a constitutional error
that caused actual and substantial prejudice or a nonconstitutional error that is “a fundamental
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defect resulting in a complete miscarriage of justice.” In re Pers. Restraint of Yates, 177 Wn.2d
1, 18, 296 P.3d 872 (2013).
A PRP must state with particularity the factual allegations underlying the petitioner’s
claims. In re Pers. Restraint of Schreiber, 189 Wn. App. 110, 113, 357 P.3d 668 (2015). And the
petitioner’s factual allegations must have evidentiary support. Schreiber, 189 Wn. App. at 113.
“The petitioner may not rely on mere speculation, conjecture, or inadmissible hearsay.” Schreiber,
189 Wn. App. at 113. Bald assertions and conclusory allegations are insufficient to support the
petitioner’s claims. Schreiber, 189 Wn. App. at 113.
If the petitioner fails to show either actual and substantial prejudice or a fundamental
defect, we deny the personal restraint petition. Schreiber, 189 Wn. App. at 113. If we are
convinced the petitioner has met his or her burden to prove actual and substantial prejudice or a
fundamental defect, we grant the petition. Schreiber, 189 Wn. App. at 113.
II. EX PARTE COMMUNICATION
Gensitskiy claims that the jury book order was an improper ex parte communication
between Klein and the trial court. Because Gensitskiy cannot show actual and substantial prejudice
resulting from the jury book order, we deny his petition on this ground.2
2 Gensitskiy also alleges that Judge Stanhke violated the appearance of fairness doctrine by granting the prosecutor’s motion. Under the appearance of fairness doctrine, a presiding judge must actually be impartial and also appear to be impartial. State v. Gamble, 168 Wn.2d 161, 187, 225 P.3d 973 (2010). Here, Judge Stanhke was not the judge who presided over Gensitskiy’s trial. Accordingly, there was no effect on whether Gensitskiy received a fair trial. Accordingly, Gensitskiy’s appearance of fairness argument lacks merit.
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A. NO STRUCTURAL ERROR
Gensitskiy argues that the ex parte communication should be considered structural error
and, therefore, he should not be required to demonstrate actual and substantial prejudice in order
to be entitled to relief on his petition. We disagree because the ex parte communication here does
not undermine the reliability of the criminal trial. Furthermore, other types of ex parte
communications are subject to harmless error analysis and are not treated as structural error.
Therefore, this ex parte communication should not be considered structural error.
“Structural error is a special category of constitutional error that ‘affect[s] the framework
within which the trial proceeds, rather than simply an error in the trial process itself.’” State v.
Wise, 176 Wn.2d 1, 13-14, 288 P.3d 1113 (2012) (quoting Arizona v. Fulminante, 499 U.S. 279,
310, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991)) (alteration in original). “Where there is structural
error ‘a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or
innocence, and no criminal punishment may be regarded as fundamentally fair.’” Wise, 176 Wn.2d
at 14 (internal quotation marks omitted) (quoting Fulminante, 499 U.S. at 310). Structural errors
are not subject to harmless error analysis and a defendant is not required to show specific prejudice
to be entitled to relief. Wise, 176 Wn.2d at 14.
Moreover, in other contexts, such as improper ex parte communications between a judicial
officer and the jury, our Supreme Court has held that “[a]lthough an improper communication
between the court and the jury is an error of constitutional dimensions, the communication may be
so inconsequential as to constitute harmless error.” State v. Bourgeois, 133 Wn.2d 389, 407, 945
P.2d 1120 (1997) (citations omitted). Under this standard, the defendant must first raise the
possibility that he or she was prejudiced by the improper communication. Bourgeois, 133 Wn.2d
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at 407. Then the State bears the burden of showing that the error was harmless beyond a reasonable
doubt. Bourgeois, 133 Wn.2d at 407.
Here, the jury book order does not undermine the reliability of the criminal trial because it
did not affect the framework of the trial itself. The foundational framework of the criminal trial
such as open voir dire of the jury and the presentation of evidence remained intact, and Gensitskiy
makes no arguments regarding them. Accordingly, nothing about the jury book order interfered
with the framework of the trial or rendered the proceeding fundamentally unfair.
And Gensitskiy presents no argument explaining why ex parte communications between
judges and jurors should not be subject to a harmless error analysis, or why this ex parte
communication, obtaining an order ex parte, should be considered differently from other types of
ex parte communications. Therefore, we will not deviate from precedent and declare this ex parte
communication to be structural error. Because the ex parte communication used to obtain the jury
book order should not be considered structural error, Gensitskiy is required to demonstrate actual
and substantial prejudice to be entitled to relief on his petition.
B. NO ACTUAL AND SUBSTANTIAL PREJUDICE
Gensitskiy claims that he has demonstrated actual and substantial prejudice because the
State had the opportunity to perform additional background checks and internet searches regarding
the potential jurors. However, this entire argument is based on speculation. Gensitskiy has not
provided any evidence regarding what the State actually did with the jury book after obtaining it.
Moreover, Gensitskiy has not provided any evidence supporting the contention that his defense
was prejudiced by not having the jury book.
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The only evidence regarding prejudice Gensitskiy has produced is Buckley’s declaration
stating that, if he had known Klein was going to obtain the jury book, he would have obtained the
jury book as well. Because Buckley does not provide any facts as to what he would have done
with the jury book, how having the jury book would have benefitted Gensitskiy’s defense, or how
Gensitskiy’s defense was prejudiced by not having the jury book, there is no evidence of actual
and substantial prejudice in the record before us. Accordingly, Gensitskiy has failed to meet his
burden to show actual and substantial prejudice from the ex parte communication resulting in the
jury book order.3
III. PUBLIC TRIAL RIGHT
Gensitskiy also argues that his right to a public trial was violated when the trial court signed
the jury book order without a public hearing. Obtaining the jury book order does not implicate the
public trial right.
Both the United States Constitution and the Washington Constitution guarantee a criminal
defendant the right to a public trial. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22. We
review whether a defendant’s right to a public trial has been violated de novo. Wise, 176 Wn.2d
at 9.
To determine whether a defendant’s public trial right has been violated, we engage in a
three-part inquiry:
3 Although we assume, without deciding that obtaining the jury book order ex parte was erroneous, we note that the best practice is to always provide notice to opposing parties to avoid ex parte contact with the court.
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(1) Does the proceeding at issue implicate the public trial right?
(2) If so, was the proceeding closed? And
(3) If so, was the closure justified?
State v. Smith, 181 Wn.2d 508, 521, 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). If we conclude
that the right to a public trial does not apply to the proceeding at issue, we do not reach the second
and third steps in the analysis. Smith, 181 Wn.2d at 519.
To determine whether the public trial right attaches, we apply the “experience and logic”
test. Sublett, 176 Wn.2d at 72-73. Under the experience prong, we consider whether the
proceeding at issue has historically been open to the public. Sublett, 176 Wn.2d at 73. Under the
logic prong, we ask “‘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-Enter.Co. v. Superior
Court of Calf., 478 U.S. 1, 8, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986). If both prongs are satisfied,
the public trial right attaches. Sublett, 176 Wn.2d at 73.
Here, the experience prong indicates that the public trial right would not attach.
Historically, not all aspects of jury selection implicate the public trial right. For example, the
statutory or administrative dismissal of jurors does not implicate the public trial right. See, e.g.,
State v. Russell, 183 Wn.2d 720, 730-31, 357 P.3d 38 (2015); State v. Slert, 181 Wn.2d 598, 604-
08, 334 P.3d 1088 (2014); State v. Wilson, 174 Wn. App. 328, 331, 298 P.3d 148 (2013). The ex
parte communication was simply to view the jury book and juror list. It was an administrative task
that did not result in any action directly affecting the potential jurors. Because the jury book order
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was administrative and did not interfere with the aspects of jury voir dire that historically take
place in an open courtroom—questioning potential jurors in voir dire, making challenges for
cause—the experience prong is not satisfied and the public trial right is not implicated. See State
v. Love, 183 Wn.2d 598, 605-06, 354 P.3d 841 (2015) (for cause and peremptory challenges
implicate the public trial right).
The logic prong also does not support concluding that the public trial right is implicated by
an ex parte communication to view the jury book and juror list. Under the logic prong, we consider
whether public access plays a significant positive role in the functioning of the particular process
in question. Here, there is no indication that public access would influence the function of
obtaining an order to view the jury book and the juror list because, from the record before us, jury
book orders are routinely granted for clerical and administrative purposes, without argument,
under a local court rule. Accordingly, the logic prong is not satisfied and obtaining the jury book
order does not implicate the public trial right. Thus, Gensitskiy’s public trial right was not violated.
IV. RIGHT TO BE PRESENT
Gensitskiy also argues that his right to be present was violated when Klein submitted the
jury book order ex parte for signature without his presence.
We review whether a defendant’s constitutional right to be present was violated de novo.
State v. Irby, 170 Wn.2d 874, 880, 246 P.3d 796 (2011). “A criminal defendant has a fundamental
right to be present at all critical stages of a trial.” Irby, 170 Wn.2d at 880. The right to be present
attaches when a defendant’s “‘presence has a relation, reasonably substantial, to the fullness of his
opportunity to defend against the charge.’” Irby, 170 Wn.2d at 881 (quoting Snyder v.
Massachusetts, 291 U.S. 97, 105-06, 54 S. Ct. 330, 78 L. Ed. 2d 674 (1934)). However, “a
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defendant does not have a right to be present when his or her ‘presence would be useless, or the
benefit but a shadow.’” Irby, 170 Wn.2d at 881 (quoting Snyder, 291 U.S. at 106-07). For
example, a defendant does not have the right to be present during in-chambers conferences
between the court and counsel on legal or ministerial matters. In re Pers. Restraint of Pirtle, 136
Wn.2d 467, 484, 965 P.2d 593 (1998).
Obtaining the jury book order was not a critical stage of the proceeding. As has already
been discussed, the jury book order was an order that was obtained without argument for
administrative purposes. This type of order falls within the scope of “ministerial” matters at which
a defendant does not have the right to be present. Accordingly, Gensitskiy’s right to be present
was not violated.
V. INEFFECTIVE ASSISTANCE OF COUNSEL
We apply the same prejudice standard to ineffective assistance of counsel claims brought
in a PRP as we do on appeal. In re Pers. Restraint of Lui, 188 Wn.2d 525, 538, 397 P.3d 90 (2017).
To prevail on an ineffective assistance of counsel claim, a defendant must show both deficient
performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984).
Counsel’s performance is deficient if it falls below an objective standard of reasonableness.
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Our scrutiny of counsel’s
performance is highly deferential; there is a strong presumption of reasonableness. McFarland,
127 Wn.2d at 335. To rebut this presumption, a defendant bears the burden of establishing the
absence of any conceivable trial tactic explaining counsel’s performance. State v. Grier, 171
Wn.2d 17, 33, 246 P.3d 1260 (2011).
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To establish prejudice, a defendant must show a reasonable probability that the outcome of
the trial would have differed absent the deficient performance. Grier, 171 Wn.2d at 34. If a
defendant fails to establish either deficient performance or prejudice, the ineffective assistance of
counsel claim fails. Strickland, 466 U.S. at 697.
A. TRIAL COUNSEL
1. Motion to Sever
Gensitskiy claims that he received ineffective assistance of counsel because his trial
counsel did not make a motion to sever the charges for trial. Gensitskiy’s ineffective assistance of
counsel claim fails because he cannot show deficient performance. By having only one trial, rather
than separate trials for each victim, Gensitskiy had the benefit of the jury hearing some of the
victims recant and doubt their testimony, and the jury could weigh that testimony against the
testimony presented by the other victims. If Gensitskiy had separate trials for each victim, then
Gensitskiy would not have been able to rely on the recantations to challenge the strength of the
State’s evidence. Therefore, there was a legitimate trial tactic justifying trial counsel’s decision
not to bring a motion to sever the trials.
Because there was a legitimate trial tactic for counsel’s decision, Gensitskiy cannot meet
his burden to establish deficient performance. Accordingly, Gensitskiy’s ineffective assistance of
counsel claim based on the failure to bring a motion to sever fails.
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2. Failure to Object to Haley’s Testimony
Gensitskiy also argues that his trial counsel was ineffective for failing to object to Haley’s
expert testimony. To establish prejudice, a defendant must show a reasonable probability that the
outcome of the trial would have differed absent the deficient performance. Grier, 171 Wn.2d at
34. Here, any prejudice was cured when Haley testified that she did not ascertain whether the
allegations were accurate. In fact, Haley testified that she was not determining whether the
disclosures or allegations were true or not.
Because Haley testified that she was not determining whether the allegations CSG made
were true, the jury could not have viewed her testimony as an improper comment on the credibility
of CSG’s allegations. Accordingly, there is not a reasonable probability that the outcome of the
trial would have differed if trial counsel had objected to Haley’s testimony. Gensitskiy has failed
to meet his burden to show prejudice in his ineffective assistance of counsel claim based on trial
counsel’s failure to object to Haley’s testimony and his claim fails.
B. APPELLATE COUNSEL
To prevail on an ineffective assistance of appellate counsel claim, a petitioner must show
that (1) the legal issue appellate counsel failed to raise had merit and (2) petitioner was actually
prejudiced by the failure to raise or adequately raise the issue. In re Pers. Restraint of Dalluge,
152 Wn.2d 772, 787, 100 P.3d 279 (2004). A petitioner can show that he was actually prejudiced
if he can show that but for his appellate counsel’s unreasonable failure to raise the issue, he would
have prevailed on his appeal. Dalluge, 152 Wn.2d at 787-88.
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1. Failure to Assign Error to the Jury Book Order
Gensitskiy argues that he received ineffective assistance of appellate counsel because his
appellate counsel failed to assign error to the jury book order. Although Gensitskiy raises three
separate issues regarding the jury book order in his PRP, he appears to rely on the alleged public
trial right violation to support his claim that he received ineffective assistance of appellate counsel.
Because the public trial right was not implicated by the court granting the jury book order,
Gensitskiy cannot meet his burden to show that the issue would have had merit on direct appeal.
Dalluge, 152 Wn.2d at 787. Thus, Gensitskiy’s ineffective assistance of appellant counsel claim
fails. Dalluge, 152 Wn.2d at 787-88.
Similarly, an ineffective assistance of appellate counsel claim based on the violation of his
right to be present would fail because the jury book order was not a violation of his right to be
present. Therefore, that issue also would not have had merit on direct appeal.
Finally, Gensitskiy does not show that he was actually prejudiced by appellate counsel’s
failure to raise on direct appeal the issue related to the jury book order. Dalluge, 152 Wn.2d
at 787-88.
Ex parte communications between judicial officers and jurors have been subject to the
harmless error analysis. Bourgeois, 133 Wn.2d at 407. Gensitskiy has not presented any argument
to support deviating from this precedent. And, as explained above, we do not consider the jury
book order a structural error. Therefore, if Gensitskiy’s appellate counsel had raised the issue
related to the jury book order on direct appeal, Gensitskiy would have had to raise the possibility
that he was prejudiced by the error. Bourgeois, 133 Wn.2d at 407. Gensitskiy has not presented
any facts from the direct appeal record that would indicate he was prejudiced by the jury book
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order. We do not consider evidence outside the record on direct appeal, therefore, we would have
determined that the jury book order was harmless error. McFarland, 127 Wn.2d at 335.
Accordingly, Gensitskiy has failed to show that he would have prevailed on his direct appeal if his
appellate counsel had raised the issue regarding the jury book order. Gensitskiy’s ineffective
assistance of appellate counsel claim based on the jury book order fails.
2. Failure to Assign Error to Haley’s Testimony
Gensitskiy also argues that his appellate counsel was ineffective for failing to assign error
to Haley’s allegedly improper opinion testimony on direct appeal. However, on direct appeal, the
allegedly improper portions of Haley’s opinion testimony would have been subject to the
constitutional harmless error standard. State v. Quaale, 182 Wn.2d 191, 201-02, 340 P.3d 213
(2014).
“Constitutional error is harmless only if the State establishes beyond a reasonable doubt
that any reasonable jury would have reached the same result absent the error.” Quaale, 182 Wn.2d
at 202. Here, Haley testified that she was not determining the truth of the allegations CSG made.
Because Haley stated that she did not determine the truth of CSG’s allegations, no reasonable jury
would have relied on Haley’s testimony as an opinion on CSG’s credibility. Accordingly, any
reasonable jury would have reached the same result absent the error and thus, the error was
harmless. Because the error was harmless, Gensitskiy would not have prevailed if the issue had
been raised by appellate counsel on direct appeal; he has failed to show prejudice and his
ineffective assistance of appellate counsel claim fails.
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Accordingly, we deny Gensitskiy’s petition for relief.
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.
SUTTON, J. We concur:
MAXA, C.J.
JOHANSON, J.