      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                         co the,
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STATE OF WASHINGTON,                     )      No. 76136-6-I                    c
                                                                                       -c-n r
                    Respondent,          )      DIVISION ONE                           2,-, r.,
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                                         )
                                                                                       71---
      V.                                 )
                                         )      UNPUBLISHED DECISION             N3

BRADLEY MICHAEL KEY,                     )                                               —
                                         )
                    Appellant.           )      FILED: June 25, 2018
                                         )
       LEACH, J. — Bradley Key challenges his conviction and sentence for one

count of assault in the first degree and two counts of assault in the fourth degree.

First, he claims his right to conflict-free counsel under the Sixth Amendment to

the United States Constitution was violated because his attorney had previously

represented a witness. Second, he contends that a sidebar during voir dire

violated his constitutional public trial rights. Third, Key contends that the trial

court sentenced him based on an improper offender score. Because Key fails to

show his attorney had a disqualifying conflict of interest or that the sidebar

implicated his public trial rights, we affirm Key's conviction. But because the

State failed to prove the existence and comparability of prior out-of-state

convictions, we remand for resentencing.
No. 76136-6-1/ 2



                                    FACTS

      In April 2016, Donald Giddings rode his bicycle to a bus stop in Oak

Harbor, Washington. There, Giddings saw Key and asked him if he had a

cigarette lighter. Key responded, "If you're man enough to smoke, you ought to

be man enough to have a lighter." Giddings felt threatened and pulled out a

pocket knife, which he kept closed in his hand on top of the handlebars.

Giddings called Key a "punk bitch" and rode away on his bicycle to another bus

stop. Two other men were waiting at that bus stop.

      Key followed Giddings to the second bus stop. Key approached Giddings

and demanded that he apologize. Giddings said, "I've done nothing wrong." He

took out his knife again, saying, "This is all I did." He then said, "I'm sorry"

multiple times.

      Key struck Giddings on the side of the head. Key beat Giddings, kicking

him and stomping on his head and neck. The two men at the bus stop tried to

intervene. Key assaulted them as well—he wrestled one to the ground and

pushed the other.

      After a trial, the jury convicted Key of assault in the first degree and two

counts of assault in the fourth degree. The trial court sentenced Key using an

offender score of five based on several foreign convictions. Key appeals his

conviction and sentence.

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No. 76136-6-1 / 3



                                     ANALYSIS

                                 Conflict of Interest

       First, Key contends that he did not receive effective assistance of counsel

because of his attorney's conflict of interest.

       Matthew Montoya was appointed to represent Key. The first day of trial,

Montoya discovered that he had previously represented Giddings on another

matter. Montoya moved to withdraw from the case. Montoya told the court,

       Your Honor, in discussing witnesses,[the prosecutor] brought to my
       attention a case where Mr. Giddings has a prior conviction, but the
       case was dismissed. However, it was dismissed after, I believe, a
       stipulated order of continuance in municipal court. The lawyer of
       record, however, was myself. I do not recall Mr. Giddings at all in
       any way, shape, or form. I didn't recognize Mr. Giddings when I
       saw the initial pictures when discovery was first provided. I did not
       recognize him. I glanced over the exhibits this morning.

The court provided Key with independent counsel to consult about the conflict

issue. Giddings waived the possible conflict of interest. Key did not waive any

conflict and requested a new attorney. The trial court denied Montoya's motion

to withdraw.     Key contends that denying this motion violated his Sixth

Amendment right to counsel.

       We review claims of ineffective assistance of counsel de novo.1 We also

review whether a conflict exists de novo.2 The State asserts that a decision to



       1 State v. White,80 Wn. App. 406,410, 907 P.2d 310(1995).
       2 State v. O'Neil, 198 Wn. App. 537, 542, 393 P.3d 1238 (2017).
                                        -3-
No. 76136-6-1/4



disqualify an attorney for a conflict is reviewed for abuse of discretion.3 As we

observed in State v. O'Neil 4 "it may be true that withdrawal is, generally, a matter

of trial court discretion." "But, whether a conflict exists requiring withdrawal is a

question of law," and "[i]f a conflict creates a legal duty to withdraw, denying

withdrawal is an abuse of discretion."5 Because Key contends that a conflict

existed that required withdrawal, the appropriate standard of review is de novo.

      "The right to counsel under the Sixth Amendment to the United States

Constitution includes the right to conflict-free counsel."6 To show a violation of

the Sixth Amendment right to counsel free from conflict, the defendant must

demonstrate that his attorney had an actual conflict of interest that adversely

affected his attorney's performance.7 An actual conflict of interest exists when

the conflict affects counsel's performance "as opposed to a mere theoretical

division of loyalties."5 To show an actual conflict of interest deprived him of


      3 See State v. Orozco, 144 Wn. App. 17, 20, 186 P.3d 1078 (2008). The
State also contends that the trial court's factual findings are verities on appeal
because Key does not challenge them. See State v. Horrace, 144 Wn.2d 386,
391, 28 P.3d 753 (2001). But the trial court did not enter formal findings; it
merely explained the reasoning behind its decision to deny the motion to
withdraw.
      4 198 Wn. App. 537, 543, 393 P.3d 1238 (2017) (distinguishing Orozco,
144 Wn. App. at 20).
      5 O'Neil, 198 Wn. App. at 543.
      6 O'Neil, 198 Wn. App. at 543; see also State v. Dhaliwal, 150 Wn.2d 559,
566,79 P.3d 432(2003).
      7 Dhaliwal, 150 Wn.2d at 570.
      8 Mickens v. Taylor, 535 U.S. 162, 171, 122 S. Ct. 1237, 152 L. Ed. 2d
291 (2002).
                                       -4-
No. 76136-6-1/ 5



effective assistance of counsel, a defendant must show that his attorney had a

conflict of interest and the conflict adversely affected his attorney's performance.9

       Because the court inquired into the conflict, Key asserts that he does not

need to show any "adverse effect" on his counsel's performance. But Key cites

no case that supports his position—that if he raises a potential conflict before

trial, the trial court must grant a motion to withdraw, even when its inquiry reveals

no evidence that the claimed conflict will adversely impact that attorney's

performance. Key distinguishes the leading cases that discuss conflict on the

basis of his objection and the trial court's inquiry. But he identifies no case that

recognizes different review standards for conflict decisions based on this

distinction.19 On the contrary, in Mickens v. Taylor" the United States Supreme

Court indicates otherwise.

       Mickens stands for the rule that courts apply the same review standard,

whether or not the court inquired.12 Mickens observed that the trial court's failure

to be aware of or inquire into a conflict does not make it more likely that counsel's



        9 Mickens, 535 U.S. at 174-75* State v. Reeder, 181 Wn. App. 897, 909,
330 P.3d 786(2014).
        10 See Mickens, 535 U.S. at 165-68; Dhaliwal, 150 Wn.2d at 566-71; State
v. Jensen, 125 Wn. App. 319, 330, 104 P.3d 717(2005).
        11 535 U.S. 162, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002).
        12 Mickens, 535 U.S. at 173; see also State v. Chavez, 162 Wn. App. 431,
442, 257 P.3d 1114 (2011)(Korsmo, A.C.J., dissenting)(explaining that Mickens
"clarified that only an actual conflict of interest that adversely affected counsel's
performance violates the Sixth Amendment").
                                          -5-
No. 76136-6-1/6



performance was significantly affected or in any other way render the verdict less

reliable.13 Likewise, a court's awareness of and inquiry into a conflict does not

alter the likelihood that the conflict affected counsel's performance. We note that

Mickens addressed a concern about incentivizing courts to make an appropriate

inquiry.14 In a dissent, Justice Souter observed that the majority's decision in

Mickens eliminated any sanction for failure to inquire.15 But the majority declined

to presume that trial judges needed more incentive to follow the law.16 It also

observed that the presumption of prejudice once a defendant shows an effect

upon representation offers some incentive to inquire into the matter and replace

a conflicted attorney if necessary in order to avoid reversa1.17 Following Mickens,

we decline Key's invitation to apply a different test when the defendant raises a

conflict issue and the court inquires into it.

       Thus, to establish a Sixth Amendment violation, Key must show the

existence of a conflict and an adverse effect on Montoya's performance. Key

claims Montoya had a conflict under RPC 1.7 and RPC 1.9.                         Under

RPC 1.7(a)(2), a conflict exists if "there is a significant risk that the representation

of one or more clients will be materially limited by the lawyer's responsibilities to


       13 Mickens, 535 U.S. at 173.
       14 Mickens, 535 U.S. at 173.
       15 Mickens, 535 U.S. at 206-07.
       16 Mickens, 535 U.S. at 173.
       17 Mickens, 535 U.S. at 173.
                                           -6-
No. 76136-6-1/7



another client, a former client or a third person or by a personal interest of the

lawyer." RPC 1.9(a) and (b) prohibit a lawyer from representing a client in a

matter substantially related to a matter in which the lawyer or the lawyer's firm

has represented a former client unless the former client gives written consent.

       Facts matter. Here, the facts presented to the trial court do not show a

significant risk that Montoya's former representation of Giddings materially limited

his representation of Key. The trial court received this evidence: First, when

asked, Montoya could not identify any way that his prior representation of

Giddings would limit his ability to represent Key.

              THE COURT: So, Mr. Montoya, do you believe that your
       representation of Mr. Key in this case would be materially limited by
       your responsibilities to your former client, Donald Giddings, and
       bear in mind Mr. Giddings' comments here?

              MR. MONTOYA: It would not, Your Honor.

Montoya also represented that he could not identify any way to use information

gained from his prior representation of Giddings.

              THE COURT: So are you reasonably sure, Mr. Montoya,
       that you would not be in any way required to use information
       relating to your representation of Donald Giddings in a prior matter
       in order to properly represent Mr. Key?

              MR. MONTOYA: No, Your Honor. And as 1 previously
       noted, I have no recollection of the case whatsoever. Even after
       looking at the court docket, I have no recollection of the case at all.




                                         -7-
No. 76136-6-1/8



Montoya answered as an officer of the court. The trial court could properly rely

on his statements.

       Key's independent counsel on the conflict issue, Margot Carter, also told

the court that she could not identify any conflict of interest.

              THE COURT: So you cannot identify, as I understand it, any
       actual conflict of interest or any conflict that would adversely affect
       Mr. Montoya's performance on behalf of Mr. Key in this case; is that
       right?

               MS. CARTER: Your Honor, what I would say is that I have
       very limited knowledge of the specifics and I was, as I understood
       it, appointed to explain to him what his options were and what the
       conflict was in general terms, but based on what I've heard today, I
       haven't been able to identify any.

              THE COURT: So just to be clear, you haven't been able to
       identify any actual conflict of interest on the part of Mr. Montoya; is
       that right?

               MS. CARTER: That is correct.

              THE COURT: And you haven't been able to identify any
       conflict that adversely affects Mr. Montoya's performance on behalf
       of Mr. Key; is that right?

              MS. CARTER: From the limited amount of knowledge I
       have, yes.
       Key could not identify disqualifying conflict either. The court asked Key

directly if he could identify any actual conflict of interest that would adversely

affect Montoya's performance.

             THE COURT: Okay, Mr. Key, I want to give you an
       opportunity to identify any actual conflict of interest that you think

                                          -8-
No. 76136-6-1/9


      exists in Mr. Montoya representing you in this case. Do you have
      anything to say about that?

                DEFENDANT: No, sir.

              THE COURT: Is there anything you'd like to tell the Court
       about any possible conflict that would adversely affect your
       attorney's performance in this case?

                THE DEFENDANT: No, sir.

       From this inquiry, the experienced trial court judge properly determined

that no actual conflict existed that required appointing Key new counsel. No one

could identify any conflict based on Montoya's previous representation of

Giddings. And Key acknowledges that Montoya remembered nothing about the

prior case.

       As for RPC 1.9, the former client, Giddings, gave his written consent to the

representation, satisfying the conditions of the rule. Key argues that because

Giddings never waived his attorney-client privilege, Montoya's performance was

limited. But Montoya maintained that he could not recall any details of his

representation of Giddings. The court had no reason to find a conflict when no

facts supported it.

       Key claims this case is like State v. Stenger."          There, the court

disqualified a prosecuting attorney from prosecuting an aggravated murder

charge because the attorney had previously represented the defendant in a



       18 111   Wn.2d 516, 518, 521-22,760 P.2d 357(1988).
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No. 76136-6-1/ 10



misdemeanor assault case.       But we distinguish Stenger.      In Stenger, the

prosecuting attorney's earlier representation of the defendant was "closely

interwoven" with the aggravated murder prosecution case because information

obtained in that representation, "including information about the defendant's

background and earlier criminal and antisocial conduct," could influence the

prosecuting attorney's exercise of discretion in seeking the death penalty.19

Here, Key identifies no information about Montoya's representation of Giddings

that could have disadvantaged Key. Key claims that Giddings' reputation for

violence or prior acts of violence could be relevant to a claim of self-defense.2°

But unlike in Stenger, where the knowledge obtained in the prior representation

might have influenced the prosecuting attorney in seeking the death penalty, Key

does not show how Montoya's potential knowledge of these facts could have

affected his representation of Key.

       The record here does not show more than a theoretical conflict, which is

not enough to justify reversa1.21     Key's claim that a conflict deprived him of

effective counsel fails.




       19 Stenger, 111 Wn.2d at 521-22.
       20 See ER 404(a)(2).
       21 Mickens, 535 U.S. at 171.
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No. 76136-6-1/ 11



                                  Public Trial Right

       Next, Key contends that the trial court violated his right to a public trial with

an unrecorded sidebar conference during voir dire. We disagree.

       Both our state and federal constitutions guarantee defendants the right to

a public tria1.22 But this right is not absolute.23 Not all interactions between the

court, counsel, and defendants implicate the public trial right.24 Washington

courts follow a three-step analysis to determine whether a violation of the right to

a public trial has occurred.25 The court asks (1) whether the public trial right

attaches to the proceeding at issue, (2) whether the courtroom was closed, and

(3) whether closure was justified.26 Whether the trial court has violated the

defendant's public trial right is a question of law that this court reviews de novo.21

       The Washington Supreme Court has adopted the experience and logic

test to determine if a particular proceeding implicates the public trial right.28

Under the experience prong, courts ask "'whether the place and process have

historically been open to the press and general public.'"29 Under the logic prong,



       22 U.S. CONST. amend. VI; WASH. CONST. art. 1, § 22.
       23 State v. Wise, 176 Wn.2d 1,9, 288 P.3d 1113(2012).
       24 State v. Siert, 181 Wn.2d 598,603, 334 P.3d 1088 (2014).
       25 State v. Love, 183 Wn.2d 598, 605, 354 P.3d 841 (2015).
       26 Love, 183 Wn.2d at 605.
       21 State v. Brightman, 155 Wn.2d 506, 514, 122 P.3d 150(2005).
       28 State v. Smith, 181 Wn.2d 508, 511, 334 P.3d 1049(2014).
       28 Smith, 181 Wn.2d at 514 (internal quotation marks omitted) (quoting
State v. Sublett, 176 Wn.2d 58,73, 292 P.3d 715(2012)(plurality opinion))).
                                       -11-
No. 76136-6-1 /12



courts ask "whether public access plays a significant positive role in the

functioning of the particular process in question."36         If the public trial right

attaches, then the trial court must apply the five factors from State v. Bone-Club31

before the trial court can close any part of a trial to the public.32

       Key contends that the sidebar that occurred during voir dire was an

improper courtroom closure. Generally, sidebars do not implicate the public trial

right because they have historically been closed to the public and public access

plays no positive role in the proceeding.33 Proper sidebars "deal with mundane

issues implicating little public interest."34 Thus, under the experience and logic

test, sidebars do not usually implicate the public trial right."

       Key contends that this sidebar was unusual and implicates the public trial

right. "[The party presenting an issue for review has the burden of providing an

adequate record to establish such error.'"36 Here, Key has not shown that this

was an untraditional sidebar. He merely cites the portion of the record showing

the sidebar occurred. In this case, the sidebar took place during voir dire, after

the attorneys questioned prospective jurors and before for-cause challenges.

       3° Smith  181 Wn.2d at 514 (citing Sublet, 176 Wn.2d at 73).
       31128 Wn.2d 254, 258-59, 906 P.2d 325(1995).
         Sublett, 176 Wn.2d at 73.
     "Smith, 181 Wn.2d at 511.
      34 Smith, 181 Wn.2d at 516.
      35 Smith, 181 Wn.2d at 516.
      36 Siert, 181 Wn. 2d at 608 (quoting State v. Sisouvanh, 175 Wn.2d 607,
619, 290 P.3d 942(2012)).
                                       -12-
No. 76136-6-I /13



The record shows that immediately after the sidebar the court took a short

recess. This strongly suggests that the sidebar discussion was about taking a

recess. Key has presented no evidence that the court and counsel discussed

anything else. Because "scheduling matters" are exactly the type of subject

intended for sidebar discussions, the conference was a traditional sidebar and

does not implicate Key's public trial right.37

       Key contends that because the trial court never memorialized the sidebar,

his right to a public trial was violated. "To avoid implicating the public trial right,

sidebars ... must either be on the record or be promptly memorialized in the

record."38 But this does not relieve Key of his burden to prove that the sidebar

implicated his public trial right. In State v. Crowder,39 a Division Three case, the

appellant argued that an unrecorded sidebar violated his right to a public trial.

The court stated, "Crowder's public trial argument would have traction only if he

could show something substantive occurred during the off-the-record sidebar."4°

Crowder failed to prove that the sidebar in his case was outside of the general

rule.41 The same is true here. Although the trial court did not memorialize the

       37 State v. Whitlock, 188 Wn.2d 511, 513-14, 396 P.3d 310 (2017)
("Typical examples of such mundane issues are scheduling, housekeeping, and
decorum.").
       38 Smith 181 Wn.2d at 516 n.10; see also Whitlock, 188 Wn.2d at 522.
       38 196 Wn. App. 861, 867, 385 P.3d 275 (2016), review denied, 188
Wn.2d 1003(2017).
       40 Crowder, 196 Wn. App. at 867.
       41 Crowder, 196 Wn. App. at 867.
                                     -13-
No. 76136-6-1 / 14



sidebar, Key has not shown that anything substantive occurred implicating his

right to a public trial.

                                   Offender Score

       Key contends that the State failed to prove the comparability of his out-of-

state convictions and seeks review of his offender score. In calculating Key's

offender score, the trial court used five out-of-state convictions, two from

Wisconsin, two from California, and one from Florida. The State concedes that it

presented insufficient evidence of these prior convictions for the court to include

them in Key's offender score. We agree.

        Under the Sentence Reform Act of 1981 (SRA),42 a defendant's offender

score may include out-of-state convictions if the out-of-state offense is

comparable to a Washington offense.43               An out-of-state offense must be

classified according to the comparable definitions and sentences provided by

Washington law." "The State bears the burden of proving the existence and

comparability of all out-of-state convictions."45

        The State did not produce evidence to establish the existence of the

Wisconsin and Florida convictions. The record contains no evidence of either

Wisconsin conviction.      For the Florida conviction, the record does contain

        42 Ch. 9.94A  RCW.
        43 RCW 9.94A.525(3).
        44 RCW 9.94A.525(3).
        45 State v. Olsen, 180 Wn.2d 468,472, 325 P.3d 187(2014).
                                       -14-
No. 76136-6-1/15



judgment and sentence documents from Florida. But neither evidences the

convictions used in Key's criminal history. The Florida offense described in the

judgment and sentence in this case states that Key was sentenced on February

15, 2008, for "Dealing in Stolen Property." The documents in the record,

however, related to convictions for "Petit Theft-Retail" with an August 4, 2008,

disposition date, and "Fraud Use of Credit Cards" with a disposition date of

September 28, 2008. The State did not meet its burden to establish the

existence of these prior convictions.

       For the California convictions, the State did not prove comparability. The

State introduced documents to show the existence of the California convictions

but offered no argument below or on appeal to show that they are comparable to

Washington offenses. The trial court merely accepted the State's proffered

criminal history. Thus, the State did not meet its burden to show that the

California offenses were comparable to Washington offenses.

       We accept the State's concession and remand to the trial court for

resentencing. The SRA permits the parties to Introduce evidence related to

criminal history on remand.46




       46 RCW 9.94A.530(2).
                                        -15-
No. 76136-6-1 / 16



                                 Appellate Costs

      Key asks this court to deny any award of appellate costs. But the State

does not request appellate costs in its brief. And when, as here, a trial court

makes a finding of indigency, that finding remains throughout review "unless the

commissioner or clerk determines by a preponderance of the evidence that the

offender's financial circumstances have significantly improved since the last

determination of indigency."47 If the State has evidence to establish this change

in circumstance, it may file a motion for costs with the commissioner.

                                 CONCLUSION

      Because Key does not show his right to effective assistance of counsel

and a public trial were violated, we affirm his conviction. Because the State

failed to prove the existence and comparability of prior foreign convictions,

however, we remand for resentencing.




WE CONCUR:



                                               wuthuti y
       47 RAP   14.2.
                                       -16-
