In re the Personal Restraint of Bonds

Sanders, J.

¶19 (dissenting) — After Robert Charles Bonds, Jr.’s convictions of attempted first degree murder and unlawful possession of a firearm were upheld by Division Two of the Court of Appeals and the judgment became final on May 9, 2005, Bonds timely filed a personal restraint petition (PRP) on July 22, 2005. However the acting chief judge did not rule on the petition until May 4, 2006, almost 10 months later. The petition was then referred to a panel of judges, and counsel was appointed for Bonds. Only a few days later the one year time limit on collateral attack under RCW 10.73.0906 passed.

¶20 The Court of Appeals allowed Bonds to amend his PRP on July 25, 2006 to add the claim the trial court violated his right to a public trial, but the lead opinion reverses, holding, “equitable tolling does not apply in these circumstances.” Lead op. at 138. The lead opinion asserts applying equitable tolling here “would undercut finality of judgments, encourage untimely filing and amendments to collateral attacks, and unjustifiably expand the narrow equitable tolling exception.” Id. at 143.1 disagree. A court’s mea culpa is the epitome of equity.

¶21 “The doctrine of equitable tolling permits a court to allow an action to proceed when justice requires it, even *146though a statutory time period has nominally elapsed.” State v. Duvall, 86 Wn. App. 871, 874, 940 P.2d 671 (1997). The lead opinion recognizes the time limit for collateral attack of a criminal judgment and sentence is one year after the judgment becomes final under RCW 10.73.090 and amendments to a PRP are permitted during this time. Lead op. at 139-41. The lead opinion also recognizes equitable tolling is allowed when justice requires it. Id. at 141-42. But is not this injustice?

¶22 “Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807, 161 L. Ed. 2d 669 (2005). Bonds fulfilled these elements. He diligently filed his PRP after the judgment was finalized and requested an attorney to ensure everything was done properly. The lead opinion asserts counsel is provided only after the chief judge determines the issues raised in the PRP are not frivolous and “nothing prevented Bonds from timely asserting the public trial issue himself.” Lead op. at 143. But as a pro se litigant Bonds did not possess the skill of a lawyer to recognize the issue of whether he received a public trial. Additionally the Court of Appeals’s lack of action for 10 months was an extraordinary obstacle standing in Bonds’s way. If the Court of Appeals acted timely, Bonds’s appointed attorney would have discovered the issue long before the one year time limit expired.

¶23 The lead opinion asserts equitable tolling was applied sparingly in State v. Littlefair, 112 Wn. App. 749, 762, 51 P.3d 116 (2002), and In re Personal Restraint of Hoisington, 99 Wn. App. 423, 431, 993 P.2d 296 (2000). Lead op. at 142. In Littlefair the court found equitable tolling was appropriate because Littlefair’s lack of knowledge about his likely deportation “was not due to any fault or omission on his part; rather, it was due to a series of mistakes by his attorney, the court, and arguably the [Immigration and Naturalization Service]." Littlefair, 112 Wn. App. at 762. In *147Hoisington equitable tolling was appropriate because Hoisington continued to raise an issue during his case, and the court continued to ignore it. Hoisington, 99 Wn. App. at 431. The fault was “with the court for not addressing his claim when he first raised it in his direct appeal.” Id. at 431-32.

¶24 Bonds’s case is analogous. Bonds timely filed his PRP and waited nearly 10 months while the Court of Appeals failed to take any action, contrary to its own rules. Bonds was left with only a few days to act after learning his petition would be heard before the one year time limit ran on his collateral attack. The lead opinion describes Bonds’s amendment as “an otherwise untimely amended personal restraint petition.” Lead op. at 137. What the lead opinion fails to recognize is Bonds’s amended PRP would have been timely if the Court of Appeals had acted in a timely fashion. When a court makes a mistake, equity is required to remedy it. But the lead opinion is “reluctant to apply exceptions to legislative time limits” even when justice so requires. Id. at 143. But isn’t that precisely what equitable tolling is all about?

¶25 The lead opinion contends, “Bonds has not met the high burden of demonstrating that the amended PRP was untimely due to bad faith, deception, or false assurances.” Id. at 144. “We hold that application of the narrow equitable tolling exception under the facts of this case does not serve the purpose of RCW 10.73.090.” Id. The lead opinion applies equitable tolling too narrowly. Equitable tolling is appropriate when there is “ ‘bad faith, deception, or false assurances by the defendant, and the exercise of diligence by the plaintiff.’ ” Duvall, 86 Wn. App. at 875 (quoting Finklestein v. Sec. Props., Inc., 76 Wn. App. 733, 739-40, 888 P.2d 161 (1995)). However, case law has not held equitable tolling is appropriate only in those circumstances. Id. Equitable tolling applies generally when justice requires it.

¶26 The one year time period in RCW 10.73.090 should have been equitably tolled from the date of his petition *148(July 22, 2005) to the date the acting chief judge finally ruled on the petition (May 4, 2006). If so, Bonds’s amended petition of July 25, 2006 would not be time-barred, and we would reach the public trial issue.

¶27 The Court of Appeals found Bonds’s right to a public trial and the public’s right to access his trial were violated when the trial court closed the courtroom several times without weighing the Bone-Club factors7 or making specific findings to justify the closures. In re Pers. Restraint of Bonds, noted at 141 Wn. App. 1032, 2007 WL 3378567, at *8-10, 2007 Wash. App. LEXIS 3042. A claim that a person’s right to a public trial was violated is a question of law reviewed de novo. State v. Easterling, 157 Wn.2d 167, 173-74, 137 P.3d 825 (2006). If a person’s right to a public trial is violated, the remedy is reversal and remand for a new trial. In re Pers. Restraint of Orange, 152 Wn.2d 795, 814, 100 P.3d 291 (2004).

¶28 Generally, an appellate court will not consider an issue raised for the first time on appeal unless it is a “manifest error affecting a constitutional right.” RAP 2.5(a); State v. Tolias, 135 Wn.2d 133, 140, 954 P.2d 907 (1998). “The defendant must identify a constitutional error and show how the alleged error actually affected the defendant’s rights at trial.” State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007). One way the error is “manifest” *149is if actual prejudice is shown. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). The defendant must show the “error had practical and identifiable consequences in the trial of the case.” State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992).

¶29 A defendant has a right to a public trial under the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution. The public also has a right to access a defendant’s trial under article I, section 10 of the Washington Constitution. Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 36, 640 P.2d 716 (1982); Easterling, 157 Wn.2d at 174. All stages of courtroom proceedings must “remain open unless the trial court identifies a compelling interest to be served by closure.” Easterling, 157 Wn.2d at 178. A defendant’s and the public’s right to an open trial is not absolute. Bone-Club, 128 Wn.2d at 259; Ishikawa, 97 Wn.2d at 36. Before closing the courtroom to the public, the trial court must weigh the five Bone-Club factors and enter specific findings that justify the closure. Bone-Club, 128 Wn.2d at 258-59. A court must address each of the five factors before closing the courtroom. Id. at 261. This standard for closing a courtroom is applied to both section 10 (public access) and section 22 (public trial right) of article I of the Washington Constitution. Id. at 259-60.

¶30 A defendant does not waive his right to a public trial if he fails to object. Id. at 261. A court must inform potential objectors of the nature of the asserted interests or else the opportunity to object holds no “ ‘practical meaning.’ ” Id. (quoting Ishikawa, 97 Wn.2d at 39). A defendant does not have a meaningful opportunity to object when the courtroom is summarily closed. Id.

¶31 Bonds’s trial was closed on four separate occasions. The courtroom was closed to determine a witness’s competency to testify, to establish whether a witness would testify, to admonish a witness, and to ascertain if a witness’s testimony was admissible.

*150¶32 The trial court first closed the courtroom during the voir dire of witness Keith Harrell to everyone except Harrell’s wife, Judy. Report of Proceedings (RP) (Feb. 21, 2002) at 72. The court asked if anyone objected to the closure, and the defense did not object. Id. at 71. The court found that closing the courtroom during Keith Harrell’s testimony was the least restrictive option to protect the privacy of his health issues. Id. at 71-72. However, the court did not find a serious or imminent threat to Keith Harrell’s health issues nor did it weigh his interests with the competing interest of maintaining an open courtroom. This closure violated Bonds’s right to a public trial and the public’s right to access Bonds’s trial.

¶33 In the second instance, the courtroom was closed during a hearing to determine if Cory Thomas would invoke his right against self-incrimination. RP (Mar. 7, 2002) at 411, 415-16. The judge asked if anyone objected to closing the courtroom before this hearing, and no one objected. Id. Bonds’s attorney concurred with the State’s attorney and the other defense attorneys that the courtroom should be closed for the hearing. Id. at 411-12. Even though Bonds concurred, this closure also violated his and the public’s constitutional right to an open trial because the court disregarded the Bone-Club factors when it failed to weigh the competing interests or find a serious and imminent threat to Thomas’s right.

¶34 The courtroom was closed a third time to admonish witness Salena Daniels about her behavior on the witness stand. RP (Mar. 13, 2002) at 944-45. The judge did not ask if anyone objected to closing the courtroom but simply called a recess and summarily dismissed the jury and the people in the gallery to admonish Daniels. Id. at 944. Finally, the courtroom was closed to hear argument on a motion to exclude Judy Harrell’s testimony. RP (Mar. 18, 2002) at 3. The judge again summarily dismissed the public from the courtroom without asking if anyone objected. Id.

¶35 The trial court did not analyze any of the Bone-Club factors nor did it enter any specific findings to justify *151closing the courtroom in these two instances. No one was given the opportunity to object, nor did the court weigh the competing interests before closing the courtroom. The third and fourth closures were also constitutional errors that violated Bonds’s right to a public trial and the public’s right to access his trial.

¶36 This error was “manifest.” See Easterling, 157 Wn.2d at 173 n.2 (holding public trial violation is manifest constitutional error). “Prejudice is presumed where a violation of the public trial right occurs.” Bone-Club, 128 Wn.2d at 261-62. Indeed, such error has been recognized as a “ ‘structural defect[ ]’ ” under federal law. Sullivan v. Louisiana, 508 U.S. 275, 281, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993) (quoting Arizona v. Fulminante, 499 U.S. 279, 309, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991)). It is not subject to harmless error analysis. Bone-Club, 128 Wn.2d at 261-62. Since prejudice is presumed here, the trial court’s failure to engage in a Bone-Club analysis and enter specific findings to justify the closures is a manifest constitutional error, and Bonds can raise this issue for the first time on appeal. This case should be reversed and remanded to the trial court.

¶37 Bonds was diligent in timely filing his PRP but was forced to wait for the Court of Appeals to take action. And now the State takes advantage of the court’s mistake to urge we deprive Bonds of his day in court on an important issue. If this isn’t “inequitable,” what is? The Court of Appeals granted equitable relief from its own error and so should we. Furthermore Bonds’s right to a public trial was violated. The Court of Appeals decision should be affirmed, and the case should be remanded to the trial court for a new trial.

¶38 I dissent.

Chambers and Stephens, JJ., concur with Sanders, J.

Reconsideration denied February 19, 2009.

RCW 10.73.090(1) provides,

No petition or motion for collateral attack on a judgment and sentence in a criminal case may be filed more than one year after the judgment becomes final if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction.

The five Bone-Club factors are:

“1. The proponent of closure or sealing must make some showing [of a compelling interest], and where that need is based on a right other than an accused’s right to a fair trial, the proponent must show a ‘serious and imminent threat’ to that right.
“2. Anyone present when the closure motion is made must be given an opportunity to object to the closure.
“3. The proposed method for curtailing open access must be the least restrictive means available for protecting the threatened interests.
“4. The court must weigh the competing interests of the proponent of closure and the public.
“5. The order must be no broader in its application or duration than necessary to serve its purpose.”

State v. Bone-Club, 128 Wn.2d 254, 258-59, 906 P.2d 325 (1995) (alteration in original) (quoting Allied Daily Newspapers of Wash. v. Eikenberry, 121 Wn.2d 205, 210-11, 848 P.2d 1258 (1993)).