State v. Dallin D. Fort (In re Pers. Restraint Petition of Dallin D. Fort)

• Decision Date: 15 September 2015
• Docket Number: Nos. 26830–6–III, 26204–9–III.,s. 26830–6–III
• Citation: 360 P.3d 820,190 Wash.App. 202
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Dallin D. FORT, Appellant.In the Matter of the Personal Restraint Petition of Dallin D. Fort, Petitioner.

190 Wash.App. 202

360 P.3d 820

STATE of Washington, Respondent, v. Dallin D. FORT, Appellant.In the Matter of the Personal Restraint Petition of Dallin D. Fort, Petitioner.

Nos. 26830–6–III

26204–9–III.

Court of Appeals of Washington,Division 3.

Sept. 15, 2015.

Carl Edward Hueber, Winston & Cashatt, Spokane, WA, for Appellant.

James Edward Egan, James E. Egan PS, Kennewick, WA, for Petitioner.

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

FEARING, J.

¶ 1 We enter a quagmire of appellate and personal restraint petition procedural rules. We consolidated a personal restraint petition and a second direct appeal filed by Dallin D. Fort upon his convictions for child rape. We agree that, at trial, Fort's public trial rights were violated when counsel and the trial court questioned potential jurors in the judge's chambers without the trial court performing a Bone–Club analysis, as State v. Bone–Club, 128 Wash.2d 254, 906 P.2d 325 (1995) requires. Fort did not waive the right, nor did he invite error. After reaching these initial holdings, we must determine whether Fort may raise the violation of his constitutional rights in his second direct appeal or in an amended personal restraint petition.

¶ 2 We refuse reversal of Dallin Fort's convictions by way of his second direct appeal. Nevertheless, we hold he may champion his public trial rights through an ineffective assistance of counsel claim, which Fort asserts in a supplemental brief in support of his personal restraint petition. The supplemental brief arrived more than one year after Fort first filed his personal restraint petition. But the one-year bar for bringing a personal restraint petition does not hinder Fort's delayed assertion of ineffective assistance because Fort filed the amendment during the pendency of his second appeal. Because of the pendency of the appeal, his judgment and sentence was not final and the one-year period had not commenced. While recognizing the expense and trauma of another trial, the sanctity of constitutional rights and Supreme Court precedence compel that we grant Dallin Fort a new trial.

FACTS

¶ 3 In the summer of 2003, Dallin Fort helped care for his nine-year-old niece, A.W. Fort awakened A.W. almost every morning during darkness, touched her vagina and compelled her to touch his penis. Fort sometimes put a vibrator inside A.W.'s vagina and sometimes placed her mouth on his penis. State v. Fort, noted at 140 Wash.App. 1023, 2007 WL 2476003 at *1.

PROCEDURE

¶ 4 This case has a long and knotty procedural history that is complicated by appellate decisions in parallel cases. An appendix to this opinion provides a quick chronology of the case.

¶ 5 On November 10, 2005, the State of Washington charged Dallin Fort with three counts of rape of a child in the first degree and one count of child molestation in the first degree. The case proceeded to trial with jury selection occurring on January 30, 2006. The trial court asked potential jurors to complete a questionnaire about whether they, or someone they knew, suffered sexual abuse or a sexual assault. The record does not suggest that Fort requested use of the questionnaire or participated in its creation. The trial court told the venire, “I am sure that you can appreciate the need for discussing these matters [sexual abuse]. But, also, we try to respect your privacy in these matters as much as we can.” Clerk's Papers (CP) at 83. The trial court, based on responses to the questionnaire, interviewed potential jurors in chambers. The trial court did not conduct a Bone–Club analysis before closing voir dire.

¶ 6 Dallin Fort did not object to the questioning of jurors in the court chambers. Fort waived his right to be present for the interviews in chambers. Fort told the court then:

Well, the reason why I decided not to be present was because I felt if the people had experiences, that if I was in the room with them, then they would know what I have been charged with and that they would feel uncomfortable with me in the room and wouldn't be as open to discussion with my attorney.

Report of Proceedings (RP) Jan. 30, 2006 at 41 (record from first appeal 25139–0–III). In chambers, jurors 6, 7, 11, 12, and 13 disclosed incidents of sexual abuse or assault and expressed an inability to be impartial. The trial court excused these jurors for cause.

¶ 7 On February 3, 2006, the jury found Dallin Fort guilty of two counts of rape of a child in the first degree, but acquitted Fort of the two other charges. On April 3, 2006, the trial court sentenced Fort to a minimum of 132 months' confinement with a maximum term of life.

¶ 8 On April 21, 2006, Dallin Fort appealed to this court. Fort's trial counsel filed the notice of appeal and designated portions of the record for transcription. Counsel did not designate voir dire for transcription. Fort avers that his appellate counsel noticed the omission. Appellate counsel moved the trial court for public funds to supplement the transcript.

¶ 9 On May 15, 2006, the trial court set an appeal bond at $150,000. Dallin Fort's parents encumbered their home to satisfy the bond. On November 1, 2006, the trial court released Fort pending appeal.

¶ 10 On October 24, 2006, appellate counsel for Dallin Fort filed the brief for Fort's first direct appeal. In the brief, Fort argued that the prosecutor engaged in prejudicial misconduct and the trial court erred in failing to consider his two convictions to be the same criminal conduct for purposes of sentencing. State v. Fort, 2007 WL 2476003 at *1. Fort did not claim a violation of his public trial rights during this first appeal. On December 15, 2006 and before this court's ruling in the first appeal, the trial court ordered voir dire from Dallin Fort's trial to be transcribed at public expense.

¶ 11 On June 12, 2007, Dallin Fort filed a personal restraint petition, in which he argued that the trial court violated his and the public's right to the open administration of justice.

¶ 12 On September 4, 2007, in an unpublished opinion, this court affirmed Dallin Fort's convictions, but reversed the sentence and remanded for resentencing. State v. Fort, 2007 WL 2476003 at *4. This court held that the trial court erred in failing to count Fort's two convictions as the same criminal conduct. State v. Fort, 2007 WL 2476003 at *2–3.

¶ 13 On September 13, 2007, this court published its decision in State v. Frawley, 140 Wash.App. 713, 167 P.3d 593 (2007), aff'd, 181 Wash.2d 452, 334 P.3d 1022 (2014), in which we reversed and remanded a criminal prosecution for a new trial because the trial court closed voir dire without weighing the Bone–Club factors on the record. The timing of the Frawley decision and this court's decision in Dallin Fort's first appeal is important. We analyze the legal impact of each decision's timing below.

¶ 14 On December 4, 2007, this appeals court issued its mandate to the superior court. The mandate reads, in relevant part:

This is to certify that the Opinion of the Court of Appeals of the State of Washington, Division III, filed on September 4, 2007 became the decision terminating review of this court in the above-entitled case on November 15, 2007. The cause is mandated to the Superior Court from which the appeal was taken for further proceedings in accordance with the attached true copy of the Opinion.

Court Action Required: The sentencing court or criminal presiding judge is to place this matter on the next available motion calendar for action consistent with the Opinion.

CP at 64. Handwritten on the mandate is the phrase: “Remanded for Re–Sentencing.” CP at 64.

¶ 15 On January 3, 2008, Dallin Fort moved the trial court to grant him a new trial or vacate his judgment and sentence based on this court's decisions in State v. Frawley, 140 Wash.App. 713, 167 P.3d 593, and State v. Duckett, 141 Wash.App. 797, 173 P.3d 948 (2007). In other words, Fort, by his motion, assigned error to the closure of the courtroom during voir dire. In support of Fort's motion for a new trial, his father declared:

I was present in the courtroom when the trial court advised the prospective jurors that they would be taken into chambers to discuss the answers to the jury questionnaire. I was not aware that I could object to the closure of the courtroom. No one asked if I objected to the closure of the courtroom. Had I been asked, I would have objected to the courtroom being closed as I had a great interest in observing my son's trial.

CP at 112.

¶ 16 On January 14, 2008, this court stayed its consideration of Dallin Fort's personal restraint petition pending our Supreme Court's decision on whether to accept review in Frawley.

¶ 17 On January 25, 2008, the trial court held a hearing to resentence Dallin Fort according to this court's September 4, 2007 decision and December 4, 2007 mandate. Before resentencing, the trial court heard argument on Fort's motion for a new trial because of a violation of public trial rights. The trial court refused to apply this court's ruling in Frawley retroactively and denied Fort's motion. The trial court commented:

And I think that kind of highlights that, you know, really, the Frawley decision caught everybody off guard and came out of left field, so to speak, because that was, certainly, the established practice as far back as anybody can remember doing these kinds of cases; that—to respect the privacy of—of the prospective jurors that we would question them about prior sexual assaults, those kind of things, in private session.

....

As the motion for new trial sits before this Court, I think it raises in my mind a question as to whether a convicted defendant whose appeal is final and whose judgment is final can avail himself or herself of—of a decision that, effectively, you know, changes the law. In other words, does Mr. Fort get the benefit of the Frawley decision or would that view—be viewed as prospective only? And this, again, gets into fairly technical discussion about whether,...