In re Mines

• Citation: 190 Wash.App. 554,364 P.3d 121
• Decision Date: 08 October 2015
• Docket Number: No. 25729–1–III.,25729–1–III.
• Court: Court of Appeals of Washington
• Parties: In re Personal Restraint Petition of John E. MINES, Jr., Petitioner.

190 Wash.App. 554

364 P.3d 121

In re Personal Restraint Petition of John E. MINES, Jr., Petitioner.

No. 25729–1–III.

Court of Appeals of Washington, Division 3.

Oct. 8, 2015.

Kenneth H. Kato, Attorney at Law, Spokane, WA, for Petitioner.

Brian Clayton O'Brien, Spokane Co. Pros. Atty., Spokane, WA, for Respondent.

BROWN J.

¶ 1 In 2002, John Edward Mines, Jr. and two other men picked up a woman in their van. When the woman refused to perform sexually for Mr. Mines, she was violently raped, severely beaten, and strangled. Eventually, the men threw her out of the van in an isolated area. She crawled to a residence and reported the rape. The victim identified Mr. Mines in a police department photomontage. He was charged with first degree rape, second degree assault, and first degree kidnapping. A jury found him guilty as charged. His judgment and sentence was affirmed on discretionary review by the Washington Supreme Court. See State v. Mines, 163 Wash.2d 387, 179 P.3d 835 (2008). In this timely personal restraint petition, he contends (1) his public trial right was violated when certain potential jurors were interviewed privately, (2) the evidence was insufficient to show that he was armed with a deadly weapon when he committed the assault, and (3) his trial counsel was ineffective for failing to object to hearsay testimony.

FACTS

¶ 2 Late one night in November 2002, J.R. was walking home in Spokane after smoking cocaine and ingesting heroin.¹ A van containing three men stopped and asked if she would like a ride. She accepted and got into the back of the van with Mr. Mines. When Mr. Mines asked her to perform oral sex, she refused and asked to get out. She was then severely beaten, strangled, threatened with death, and raped in the vagina and anus with a plastic soda bottle and a screwdriver.

¶ 3 The State charged Mr. Mines with first degree rape, second degree assault, and first degree kidnapping. One of Mr. Mines' codefendants, Clinton Cramer, testified against him at trial. The jury found him guilty as charged. He was sentenced to an indeterminate life sentence under former RCW 9.94A.712 (2001) (sentencing for sexual offenses) with an exceptionally high minimum sentence based upon a finding of deliberate cruelty.

¶ 4 On appeal, this court remanded the case for resentencing pursuant to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), but later withdrew the opinion and stayed the case pending the decisions in State v. Borboa, 157 Wash.2d 108, 135 P.3d 469 (2006) and State v. Clarke, 156 Wash.2d 880, 134 P.3d 188 (2006) (holding that exceptional minimum sentences under RCW 9.94A.712 do not always violate Blakely ). See State v. Mines, unpublished opinion no. 21989–5–III (Wash.Ct.App.2005) noted at 2005 WL 1705780. The Washington Supreme Court accepted discretionary review on the sufficiency of the evidence and affirmed his judgment and sentence.²

Mines, 163 Wash.2d at 391–92, 179 P.3d 835. The mandate was issued on May 5, 2008.

¶ 5 Mr. Mines filed this pro se personal restraint petition in December 2006, while discretionary review in the Supreme Court was pending. In the timely original petition, he claimed insufficiency of the evidence to support second degree assault and ineffective assistance of trial counsel. This court stayed the matter pending the decision on his appeal. Through counsel, Mr. Mines filed a supplemental brief in April 2008, contending his public trial right was violated when the trial court conducted private voir dire of some potential jurors without first holding a hearing to consider the Bone–Club factors. State v. Bone–Club, 128 Wash.2d 254, 258–59, 906 P.2d 325 (1995). After the stay was lifted in May 2008, the State moved to stay the petition pending the decisions in State v. Momah, 167 Wash.2d 140, 217 P.3d 321 (2009), and State v. Strode, 167 Wash.2d 222, 217 P.3d 310 (2009) (public trial rights cases). Mr. Mines agreed to the stay, which was granted in June 2008.

¶ 6 After the June 2008 stay was lifted on March 23, 2010, the State filed a response brief and Mr. Mines filed a reply. Then, in August 2010, the matter was again stayed pending the mandate in State v. Wise, 176 Wash.2d 1, 288 P.3d 1113 (2012). This stay was lifted on January 11, 2013, and the parties filed supplemental briefing on the applicability of Wise as well as its companion cases: State v. Paumier, 176 Wash.2d 29, 288 P.3d 1126 (2012) and In re Personal Restraint of Morris, 176 Wash.2d 157, 288 P.3d 1140 (2012). On March 4, 2013, the Acting Chief Judge of this court entered an order referring the personal restraint petition to a panel of judges for determination on the merits.

¶ 7 The case was set for oral argument on the June 13, 2013 docket. The proceedings were again stayed, however; this time pending the decision and mandate by the Washington Supreme Court in In re Personal Restraint of Hartman, no. 81225–0. After Mr. Hartman died and his case was closed, the stay on this case was lifted and immediately another stay was entered pending the decisions and mandates in In re Personal Restraint of Speight, no. 89693–3, and In re Personal Restraint of Coggin, no. 89694–1. These cases were decided and mandated and the stay was finally lifted on January 26, 2015. See In re Pers. Restraint of Speight, 182 Wash.2d 103, 340 P.3d 207 (2014) ; In re Pers. Restraint of Coggin, 182 Wash.2d 115, 340 P.3d 810 (2014).

¶ 8 Meanwhile, Mr. Mines obtained new counsel, who filed a motion to amend his petition on September 19, 2013. He asked this court "in the interests of justice" to allow him to include an ineffective assistance claim based on the previous attorneys' failure to raise the public trial issue on appeal or in the petition. Motion to Amend PRP at 1. The motion was referred to the panel for consideration with the petition. The parties have submitted supplemental briefing on Speight and Coggin and to address the motion to amend the petition.

STANDARDS OF REVIEW

¶ 9 Relief by way of a collateral challenge to a judgment and sentence is extraordinary. In re Pers. Restraint of Coats, 173 Wash.2d 123, 132, 267 P.3d 324 (2011). Generally, a personal restraint petition filed within one year after the judgment and sentence is final may challenge the conviction on any grounds, but must meet a high standard. Id. The petitioner must show with a preponderance of the evidence that he or she was actually and substantially prejudiced by a violation of constitutional rights, or that his or her trial suffered from a nonconstitutional defect that inherently resulted in a complete miscarriage of justice. Id.; In re Pers. Restraint of Brett, 142 Wash.2d 868, 874, 16 P.3d 601 (2001). The petitioner may not renew an issue that was raised and rejected on direct appeal unless the interests of justice require relitigation of that issue. In re Pers. Restraint of Yates, 177 Wash.2d 1, 17, 296 P.3d 872 (2013). Washington courts have limited the relief considered in the "interests of justice" to cases where an intervening change in the law or some other circumstance justified the failure to raise a crucial argument on appeal. Id. A petitioner who renews an issue may not merely present different factual allegations or raise different legal arguments. Id.

ANALYSIS

A. Public Trial

¶ 10 The issue is whether Mr. Mines' constitutional right to a public trial was violated when some of the potential jurors were interviewed in a private jury room. He contends he is entitled to a new trial because the error is structural and therefore presumed prejudicial. In his untimely motion to supplement the petition he contends he had ineffective assistance of counsel because previous attorneys failed to raise the public trial issue on appeal and in his timely personal restraint petition.

¶ 11 The state and federal constitutions guarantee criminal defendants a right to a public trial.See WASH. CONST. art. I, § 22 (the "accused shall have the right ... to have a speedy public trial") and U.S. CONST. amend. VI ("the accused shall enjoy the right to a speedy and public trial"); In re Pers. Restraint of Orange, 152 Wash.2d 795, 804, 100 P.3d 291 (2005). Additionally, article I, section 10 of the Washington Constitution guarantees the public's open access to judicial proceedings ("[j]ustice in all cases shall be administered openly"). Violation of the public trial right is considered a structural error because it affects the framework within which the trial proceeds. State v. Wise, 176 Wash.2d at 5, 288 P.3d 1113. As a result, violation of the public trial right is presumed prejudicial on direct appeal, even when the violation is not preserved by objection. Id. at 16, 288 P.3d 1113. When a public trial violation is claimed for the first time in a personal restraint petition, however, the petitioner generally must show actual and substantial prejudice. In re Pers. Restraint of Coggin, 182 Wash.2d at 116, 340 P.3d 810 ; In re Pers. Restraint of Speight, 182 Wash.2d at 107, 340 P.3d 207.

¶ 12 Although vital, the right to a public trial is not absolute. Wise, 176 Wash.2d at 9, 288 P.3d 1113 ; State v. Paumier, 176 Wash.2d 29, 34–35, 288 P.3d 1126 (2012). A trial court may close a courtroom if it first balances the public trial right against competing rights and interests, using the five criteria established in Bone–Club, 128 Wash.2d at 258–59, 906 P.2d 325.³ Wise, 176 Wash.2d at 10, 288 P.3d 1113. As summarized in Wise,the Bone–Club criteria require the trial court, on the record, to at least (1) state the public trial right that will be lost by moving proceedings into a private room, (2) identify the compelling interest that motivates the closure, (3) weigh the competing rights, (4) give an opportunity to object, and (5) adopt the least restrictive alternative of closure. Id. Although a trial court may close all or part of a trial after considering the alternatives, it must " ‘resist a closure motion except under the most unusual circumstances.’ " Id. at 11, 288 P.3d...