State v. Christensen

• Decision Date: 09 January 2018
• Docket Number: 49764-6-II
• Citation: 1 Wn.App.2d 1068
• Parties: STATE OF WASHINGTON, Respondent, v. CHAD ERNEST CHRISTENSEN, Appellant.
• Court: Washington Court of Appeals

1 Wn.App.2d 1068

STATE OF WASHINGTON, Respondent, v. CHAD ERNEST CHRISTENSEN, Appellant.

No. 49764-6-II

Court of Appeals of Washington, Division 2

January 9, 2018

UNPUBLISHED OPINION

WORSWICK, J.

Chad Ernest Christensen appeals from the trial court's denial of his CrR 7.8(b)(5) motion for relief from the judgment and sentence imposed following his conviction of first degree child molestation. Christensen's court-appointed attorney has filed a motion to withdraw on the ground that there is no basis for a good faith argument on review. We grant the motion to withdraw and dismiss the appeal.

FACTS

In 2012, Christensen was convicted of first degree child molestation following a jury trial. We affirmed Christensen's conviction on direct appeal. State v Christensen, noted at 181 Wn.App. 1002 (2014) (unpublished).

In 2015, Christensen filed a CrR 7.8(b)(5) motion for relief from his judgment and sentence. Christensen argued in his motion that (1) his public trial right was violated when either the bailiff or trial counsel asked Christensen's father, Chip Christensen, to give up his seat in the courtroom to make room for potential jurors, and (2) defense counsel was ineffective for failing to object to the courtroom closure. Christensen attached to his CrR 7.8 motion a sworn declaration from his father, which stated in relevant part:

(4) Just prior to the venire entering the courtroom the prosecutor informed the court that "There was a larger than normal venire and there wouldn't be enough room for everyone." I was then asked to leave. I thought that was normal procedure, so I left the courtroom.

(6) I did however remain in the courthouse to be able to go back into the courtroom once seats became available.

(8) After selection of the jurors was completed the court went to lunch. It was not until after they returned from lunch was I allowed to re-enter the courtroom. I was excluded for the entire duration of the jury selection.

Clerk's Papers (CP) at 104-05.

The trial court conducted an evidentiary hearing and took testimony regarding the alleged closure. Following the hearing, the trial court dismissed Christensen's CrR 7.8(b)(5) motion and later entered its findings of fact and conclusions of law, which stated in relevant part:

FINDINGS OF FACT

1.4. Christensen and Chip Christensen entered the courtroom together the morning of day one of Christensen's jury trial through the unlocked public hallway entrance to the courtroom.

1.5. The standard protocol for opening up the courtroom to the public is for the courtroom clerk to enter through the nonpublic entrance, turn on the back lights, walk to the public entrance, open the doors, and using the key unlock both doors for the public entrance.

1.6. The only way to lock the doors from the public hallway to the entrance of the courtroom is for a person to manually lock the doors from the outside with a key.

1.7. The courtroom clerk, judge and court administrator have keys to the courtrooms.

1.8. For the unlocked public entrance doors of the courtroom to become locked while court was in session, it would require a person to go outside the courtroom, and physically lock the courtroom doors.

1.11. Chip Christensen was asked to move from his seat in the first pew, directly behind the defense table, in order to accommodate the seating of the 51 prospective jurors.

1.12. Chip Christensen was not asked to leave the courtroom.

CONCLUSIONS OF LAW

Based on these findings the court draws the following conclusions:

2.2. Christensen has not met his burden to show, by competent evidence, that there was in fact a courtroom closure.

CP at 344-45. Christensen appeals from the order denying his CrR 7.8 motion.

ANALYSIS

RAP 15.2(i) provides that court-appointed counsel should file a motion to withdraw "[i]f counsel can find no basis for a good faith argument on review." Pursuant to Anders v. California, 386 U.S. 738, 744, 87 S.Ct 1396, 18 L.Ed.2d 493 (1967), and State v. Theobald, 78 Wn.2d 184, 185, 470 P.2d 188 (1970), counsel's motion to withdraw must

"be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court-not counsel- then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous., "

State v. Hairston, 133 Wn.2d 534, 538, 946 P.2d 397 (1997) (alteration in original) (quoting Anders, 386 U.S. at 744). This procedure has been followed. Christensen's counsel on appeal filed a brief with the withdrawal motion. Christensen was served with a copy of the brief and informed of his right to file a statement of additional grounds for review.

The material facts are accurately set forth in counsel's brief in support of the motion to withdraw. We have reviewed the briefs filed in this court and have independently reviewed the entire record. We specifically considered the following potential issues raised by counsel:

1. [Whether a]ppellant was denied his constitutional right to a public trial because, during voir dire, appellant's father was asked to give up his seat in favor of potential jurors.

2. [Whether a]ppellant was denied his constitutional right to effective assistance of counsel because his attorney failed to object to a closure of the courtroom during voir dire.

3. [Whether a]ppellant was denied his constitutional right to effective assistance of appellate counsel because his attorney on appeal failed to assign error or argue a denial of appellant's public trial right.

Motion to Withdraw at 3.

We generally review a trial court's denial of a CrR 7.8 motion to vacate a conviction for an abuse of discretion. State v. Scott, 150 Wn.App. 281, 290, 207 P.3d 495 (2009). Where a trial court weighs evidence following a CrR 7.8 hearing, we review its findings of fact for substantial evidence and its conclusions of law de novo. State v Schwab, 141 Wn.App. 85, 91, 167 P.3d 1225 (2007). Upon our independent review of the record, we conclude that substantial evidence supports each of the trial court's findings of fact.

Regarding the first potential issue raised by counsel, there is no good faith argument...