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In re Personal Restraint of Erhart

Supreme Court of Washington, En Banc

May 7, 2015

In the Matter of the Personal Restraint of Toby Alfred Erhart, Petitioner

Considered April 29, 2015

Toby A. Erhart, pro se.

Michael K. Dorcy, Prosecuting Attorney, and Timothy J. Higgs, Deputy, for respondent.

OPINION

Per Curiam

[183 Wn.2d 146] ¶ 1 Toby Erhart's judgment and sentence on multiple counts of first degree child rape and incest became final on direct appeal in 2008. In 2010 Erhart filed a personal restraint petition challenging his convictions, arguing for the first time that his constitutional right to a public trial was violated. The Court of Appeals dismissed the petition as untimely. We grant discretionary review and affirm.

FACTS

¶ 2 During Erhart's trial, the court interviewed several prospective jurors privately in chambers without first conducting the courtroom closure analysis required by State v. Bone-Club, 128 Wn.2d 254, 258-59, 906 P.2d 325 (1995). The jury found 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.

¶ 3 In 2010 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 [183 Wn.2d 147] 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 Wn.2d 103, 340 P.3d 207 (2014), and In re Personal Restraint of Coggin, 182 Wn.2d 115,

Page 138

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 grant discretionary review, and for reasons discussed below, we affirm the Court of Appeals.

ANALYSIS

¶ 4 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 of Adams, 178 Wn.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 of RCW 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]

[183 Wn.2d 148] ¶ 5 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 Wn.App. 425, 200 P.3d 266 (2009), rev'd, 176 Wn.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, 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 Wn.2d at 11-12; State v. Strode, 167 Wn.2d 222, 227, 217 P.3d 310 (2009); In re Pers. Restraint of Orange, 152 Wn.2d 795, 804, 100 P.3d 291 (2004). Wise thus did 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 Wn.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]

¶ 6 We affirm.


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