FILED
JAN. 20, 2015
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 31859-1-111
Respondent, )
)
v. )
)
STEVEN D. OSTER, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J. - Steven Oster appeals from a jury determination that he committed
two felony violations of a no contact order, arguing that his public trial rights were
violated during the exercise of peremptory challenges. We affirm the convictions, but
remand for the court to strike the term of community custody.
FACTS
During jury selection, the parties exercised their peremptory challenges by
marking them on a sheet of paper that was passed back and forth between counsel in the
courtroom. There was no objection to the process.
No. 31859-l-III
State v. Oster
After the jury returned the two guilty verdicts, the trial court imposed a sentence
consisting of concurrent 60 month prison terms followed by 12 months of community
custody. The judgment and sentence carried a notation indicating that the combined term
of incarceration and community custody could not exceed 60 months. Mr. Oster
promptly appealed to this court.
ANALYSIS
The appeal presents two issues concerning the jury selection process and the term
of community custody. We conclude that Mr. Oster's right to a public trial was not
violated when the parties exercised their peremptory challenges, but that the trial court
erred in imposing the term of community custody. We will address those two matters in
that order.
Public Trial
Mr. Oster contends that by silently exercising peremptory challenges on paper, he
was denied his right to a public trial. Several recent cases have rejected this argument.
Article I, § 22 of the Washington Constitution guarantees a criminal defendant
the right to a "public trial." Article I, § 10 requires that justice "in all cases shall be
administered openly." In a criminal case, these complementary provisions serve the
same function of ensuring that the defendant receives a public trial. State v. Herron,
177 Wn. App. 96, 106,318 P.3d 281 (2013). Courts may only close proceedings after a
proper balancing of competing interests. State v. Bone-Club, 128 Wn.2d 254,258-59,
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No. 31859-1-III
State v. Oster
906 P.2d 325 (1995). The Bone-Club balancing test is applicable to both constitutional
provisions. Id. at 259. The threshold question of whether a particular matter is required
to be heard in open court is determined by using the experience and logic test set out in
State v. Sublett, 176 Wn.2d 58, 292 P.3d 715 (2012).
The practice of conducting written peremptory challenges has been subject to
several recent public trial challenges. E.g., State v. Love, 176 Wn. App. 911, 914 n.l,
309 P.3d 1209 (2013). Applying the experience and logic test, we determined in Love
that the practice of conducting peremptory challenges at sidebar did not constitute a
closure ofthe courtroom: Id. at 920. Accord, State v. Dunn, 180 Wn. App. 570, 574,
321 P.3d 1283 (2014). Subsequently, this court held that conducting peremptory
challenges "on paper" did not constitute a closure of the courtroom. State v. Webb,
183 Wn. App. 242, 246-47, 333 P.3d 470 (2014).
On the basis of Love, Dunn, and Webb, we conclude once again that the public
trial right does not preclude the written exercise of peremptory challenges in the
courtroom. There was no violation of Mr. Oster's right to a public trial.
I The Washington Supreme Court, after applying the experience and logic test to
sidebar conferences, concluded that sidebar conferences do not violate the public trial
right. State v. Smith, 181 Wn.2d 508,511,333 P.3d 388 (2014) (sidebar conferences on
several issues).
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No. 31859-I-II1
State v. Oster
Community Custody
The parties agree that the trial court erred by imposing a term of community custody.
We agree and remand the case with directions to strike the term of community custody.
A sentence includes periods of total or partial confinement, as well as any term of
community custody imposed by the court. RCW 9.94A.030(8); RCW 9.94A.505(2)(a)(i),
(ii). RCW 9.94A.701(9) provides that the period of community custody "shall be
reduced" when the "standard range term of confinement in combination with the term of
community custody exceeds the statutory maximum for the crime as provided in
RCW 9A.20.021." Felony violation ofa no contact order is a class C felony.
RCW 26.50.110. The maximum sentence for a class C felony is five years.
RCW 9A.20.021(1)(c).
Because the 60 month sentence of incarceration and the 12 month term of
community custody together exceed the statutory maximum sentence of 60 months, the
trial court erred by adding the term of community custody. The addition of the notation
limiting the total of the two terms to the 60 month period is ineffectual in light of
statutory amendments. See State v. Boyd, 174 Wn.2d 470,472,275 P.3d 321 (2012).2
We therefore remand the matter with directions to strike the term of community custody.
2 We note that the notation would have been effective if the 60 month term of
incarceration had been an exceptional sentence rather than a standard range sentence. See
In re PRP o/McWilliams, No. 88883-3,2014 WL 7338498 (Wash. Dec. 23, 2014).
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No. 31859-1-II1
State v. Oster
Affirmed and remanded.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
orsmo, J.
WE CONCUR:
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Fearing, .'
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