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In re Personal Restraint of Rhem

Supreme Court of Washington, En Banc

May 11, 2017

In the Matter of the Personal Restraint of MICHAEL LOUIS RHEM, Petitioner.

          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 of Rhem, No. 35195-1-II (Wash.Ct.App. Dec. 22, 2015) (unpublished), http://www.courts.wa.gOv/opinions/pdf/35195-1.15.pdf, review granted, 186 Wn.2d 1017, 383 P.3d 1028 (2016). We affirm.

          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 of Rhem'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 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 of Rhem's trial. Rhem, slip op. at 10. After taking testimony at the reference 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 o/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]

          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 of Morris, 176 Wn.2d 157');">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.

          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 12.1(a); RAP 16.7(a)(2); In re Pers. Restraint of Davis, 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 o/Sacco, 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 12.1(a). A petition should set forth "[a] statement of (i) the facts upon which the claim of unlawful restraint of petitioner is based and 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, ...


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