Pennell, C.J.

Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, Nancy P. Collins, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-3647, for Appellant.

Shawn P. Sant, Frank William Jenny II, Franklin County Prosecutor's Office, 1016 N. 4th Ave. Pasco, WA, 99301-3706, for Respondent.

OPINION PUBLISHED IN PART

Pennell, C.J.

¶1 Videoconferencing has been a common feature of court proceedings during the COVID-19 pandemic. The use of videoconferencing is often necessary and it has many advantages; however, there can be overriding constitutional concerns. When videoconferencing is used, courts must take care to ensure criminally accused persons are able to confidentially confer with counsel throughout the proceedings. Failure to provide a confidential means to communicate may be grounds for reversal on appeal.

¶2 Deshawn Anderson argues he was not afforded the ability to confidentially consult with his attorney during a video resentencing hearing. We find his claim persuasive. However, the parties agree Mr. Anderson's claim is subject to a harmless error analysis. We note Mr. Anderson prevailed on all issues raised at his resentencing hearing. There is no plausible basis for additional relief. Any denial of confidential attorney-client communications during resentencing was therefore harmless beyond a reasonable doubt. Although Mr. Anderson has established constitutional error, he is not entitled to relief.

FACTS

¶3 In 2016, a Franklin County jury convicted Deshawn Anderson of multiple felonies including murder, assault, and unlawful possession of a firearm. Mr. Anderson received a sentence of 1,126 months’ imprisonment with 36 months’ community custody, and was assessed $75,430.49 in restitution. A portion of the restitution was imposed jointly and severally with two codefendants.

¶4 Mr. Anderson's convictions were affirmed in a prior appeal to this court, but we remanded for resentencing. State v. Anderson , No. 34655-2-III, 2018 WL 5734623 (Wash. Ct. App. Nov. 1, 2018) (unpublished), https://www.courts.wa.gov/opinions/pdf/346552_unp.pdf. Three specific issues were identified for resentencing: a vague community custody condition, two scrivener's errors, and imposition of discretionary legal financial obligations in light of Mr. Anderson's indigence.

¶5 Mr. Anderson's resentencing was initially scheduled for March 31, 2020, roughly one year after our mandate was issued. However, to accommodate Mr. Anderson's "desire to be present," Clerk's Papers (CP) at 75, the hearing was moved. On March 26, 2020, the trial court signed an order directing Mr. Anderson's transport from the Washington State Penitentiary in Walla Walla to Franklin County. The order specified Mr. Anderson was to be brought before the court on May 12, 2020, at 8:30 a.m., for "entry of an Amended Judgment and Sentence." Id . at 76.

¶6 Mr. Anderson's resentencing took place in the early days of the COVID-19 pandemic. Washington's governor declared a state of emergency on February 29, 2020. Shortly thereafter, our Supreme Court began issuing a series of emergency orders addressing court operations during the pandemic. On April 29, 2020, the Supreme Court issued an order that specified as follows:

Courts must allow telephonic or video appearances for all scheduled criminal and juvenile offender hearings whenever possible. For all hearings that involve a critical stage of the proceedings, courts shall provide a means for defendants and respondents to have the opportunity for private and continual discussion with their attorney.

Second Revised and Extended Order Regarding Court Operations, No. 25700-B-618, at 9 (Wash. Apr. 29, 2020), http://www.courts.wa.gov/content/publicUpload/Supreme% 20Court% 20Orders/Extended% 20and% 20Revised% 20Supreme% 20Court% 20Order% 20042920.pdf.

¶7 Mr. Anderson attended the May 12 resentencing hearing via video. His attorney appeared telephonically. The hearing was very brief, generating only seven substantive pages of a report of proceeding. During the hearing, there was no discussion regarding whether Mr. Anderson had consented to appear via video. Nor was there any clarification about whether Mr. Anderson and his attorney were able to communicate throughout the hearing. The parties agreed to modify the judgment and sentence according to the three issues identified in our prior decision. When addressed by the court, Mr. Anderson confirmed he agreed with the modifications.

¶8 At the hearing's close, the court asked Mr. Anderson if he had been able to hear and understand the proceedings. Mr. Anderson responded affirmatively, but also asked how he was supposed to pay the outstanding restitution. The court instructed Mr. Anderson to confer with his attorney. Mr. Anderson subsequently asked the court how long he had to appeal the decision. The court told him that he had 30 days to make a direct appeal, and that he should speak to his attorney regarding the process. The hearing then adjourned.

¶9 A first amended judgment and sentence, entered May 12, 2020, reflected the changes agreed to at the hearing. The judgment included $75,430.49 in restitution, but made no reference to joint and several liability. In addition, although the trial court struck most of the discretionary financial obligations, the judgment and sentence form included prewritten language mandating that Mr. Anderson pay supervision fees as part of his community custody.

¶10 Mr. Anderson filed a timely notice of appeal of the amended judgment and sentence.

ANALYSIS

Right to be present

¶11 For the first time on appeal, Mr. Anderson argues the superior court's videoconference resentencing hearing deprived him of his right to be present and to confer with counsel. Unpreserved errors are generally not subject to appeal as a matter of right. RAP 2.5(a). An exception can apply for manifest errors affecting the litigant's constitutional rights. RAP 2.5(a)(3). But not all constitutional rights are subject to the manifest error standard. For example, violation of the constitutional right to confront witnesses must be preserved for appellate review regardless of provisions of RAP 2.5(a)(3). See State v. Burns , 193 Wash.2d 190, 210-11, 438 P.3d 1183 (2019). Mr. Anderson's request for relief turns on the initial issue of whether he can meet the manifest error standard.

¶12 Criminally accused persons have a constitutional right to be present at all critical stages of court proceedings; however, this right is one that can be waived by failure to object. See State v. Jones , 185 Wash.2d 412, 426, 372 P.3d 755 (2016) ; State v. Sublett , 176 Wash.2d 58, 124-25, 292 P.3d 715 (2012) (Madsen, C.J., concurring). As was likely true here, a defendant may waive an in-person court appearance for strategic reasons, such as health concerns. A trial court is not required to probe into the issue of whether the defendant is voluntarily waiving the right to presence if no objection is made. To the extent the virtual hearing process implicated Mr. Anderson's right to be present, this issue has been waived.

Right to counsel

¶13 The constitutional right to counsel is different than the right to presence. The right to counsel applies to all critical stages of criminal proceedings, including resentencing, and cannot be lost without a specific waiver. State v. Rupe , 108 Wash.2d 734, 741, 743 P.2d 210 (1987) ; City of Bellevue v. Acrey , 103 Wash.2d 203, 208-12, 691 P.2d 957 (1984). Our cases recognize that deprivation of the right to counsel is a fundamental constitutional claim that can be raised for the first time on appeal, so long as the claim is manifest, as required by RAP 2.5(a)(3). See, e.g. , State v. Brown , 159 Wash. App. 1, 17, 248 P.3d 518 (2010) ; State v. Holley , 75 Wash. App. 191, 196-97, 876 P.2d 973 (1994), abrogated on other grounds by In re Pers. Restraint of Yung-Cheng Tsai , 183 Wash.2d 91, 105-06, 351 P.3d 138 (2015).

¶14 The constitutional right to counsel demands more than just access to a warm body with a bar card. Among other things, it requires individuals charged with crimes to be able to confer privately with their attorneys at all critical stages of the proceedings. See State v. Hartzog , 96 Wash.2d 383, 402, 635 P.2d 694 (1981). The ability for attorneys and clients to consult privately need not be seamless, but it must be meaningful. As reflected in the Supreme Court's April 29, 2020, court operations order, it is the role of the judge to make sure that attorneys and clients have the opportunity to engage in private consultation.

¶15 The Supreme Court's decision in State v. Gonzales-Morales , 138 Wash.2d 374, 979 P.2d 826 (1999), expounds on the court's role in ensuring private attorney-client consultation. Mr. Gonzales-Morales primarily spoke Spanish and required an interpreter to communicate with counsel and understand court proceedings. Id . at 376, 979 P.2d 826. During trial, the State called a Spanish-speaking witness, but was unable to secure its own interpreter. Id . The State asked to borrow Mr. Gonzales-Morales's interpreter during the witness's testimony. Id . The trial court approved this request, subject to certain ground rules. Id . at 377, 979 P.2d 826. The court determined the interpreter would remain seated at defense counsel table during the trial. Id . The court also clarified that if Mr. Gonzales-Morales wished to consult with his attorney during the testimony, he was entitled to alert the court and pause the proceedings. Id .

¶16 The Supreme Court upheld the process used by the trial court over Mr. Gonzales-Morales's constitutional objection. Id . at 386, 979 P.2d 826. The court reviewed similar cases from other jurisdictions. Id . at 382-85, 979 P.2d 826. Those cases all noted that the use of a borrowed interpreter does not violate the constitutional right to attorney consultation when the trial court offers the defendant the option of interrupting testimony for a consultation. Id .

¶17 Mr. Anderson argues his case fails to meet the constitutional standard recognized in Gonzales-Morales . We agree. Unlike what happened in Gonzales-Morales , the trial court here never set any ground rules for how Mr. Anderson and his attorney could confidentially communicate during the hearing. Nor were Mr. Anderson and his attorney physically located in the same room, where they might have been able to at least engage in nonverbal communication. Given Mr. Anderson participated by video from the jail and his attorney was appearing by telephone from a separate location, it is not apparent how private attorney-client communication could have taken place during the remote hearing. It is unrealistic to expect Mr. Anderson to assume he had permission to interrupt the judge and court proceedings if he wished to speak with his attorney.

¶18 Mr. Anderson has met his burden of showing the existence of a constitutional error that is manifest, or obvious from the record. See State v. O'Hara , 167 Wash.2d 91, 98, 217 P.3d 756 (2009). Thus, the lack of error preservation is not a hurdle to relief under RAP 2.5(a)(3). Nevertheless, our analysis does not end here. We must also assess the issue of prejudice. Id. at 99, 217 P.3d 756. The parties agree the test for prejudice applicable in this case is the constitutional harmless error analysis. Under this test, prejudice is presumed and the State bears the burden of proving harmlessness beyond a reasonable doubt. State v. Irby , 170 Wash.2d 874, 885-86, 246 P.3d 796 (2011).

¶19 Our review of the record shows the State has met its burden of proving harmless error. Mr. Anderson received all the forms of relief that were requested at his resentencing hearing. Although Mr. Anderson complains his written amended judgment and sentence contains technical errors, those issues did exist at the time of the in-person hearing. Attorney-client consultation would not have made a difference. Mr. Anderson also asserts that had he and his attorney been able to confidentially confer, he might have asked his attorney to expand the scope of the hearing beyond the issues identified on remand. We are unconvinced. Mr. Anderson and his attorney were able to confer prior to the hearing. Nevertheless, they did not object to the hearing being noted merely for "entry of an Amended Judgment and Sentence." CP at 76. In addition, there are no plausible topics that the court may have been willing to reconsider, beyond those already addressed. Even if Mr. Anderson had asked his attorney to try to expand the scope of the hearing, there is no reasonable basis for believing the result could have been different. The State has met its burden of showing constitutionally harmless error.

¶20 Although Mr. Anderson is not entitled to relief, this case is a cautionary tale for trial judges administering remote criminal proceedings. The COVID-19 pandemic has complicated the administration of justice in innumerable ways. Videoconferencing has been an essential component of continued court operations. But courts must ensure videoconferencing occurs in a way that allows for private attorney-client consultation. The best method is to arrange for attorneys and clients to be located in a shared physical space, with access to additional communication technologies (such as text messaging devices) if necessary to maintain physical distancing. See REMOTE JURY TRIALS WORK GROUP, BEST PRACTICES IN RESPONSE TO FREQUENTLY ASKED QUESTIONS (FAQ), at 7-8 (2021), https://www.courts.wa.gov/newsinfo/content/Best% 20Practices% 20in% 20Response% 20to% 20FAQ.PDF. In addition to these steps, trial courts should make a record of what has been done to ensure confidential communication. An explicit record will ensure the court's measures are understood and will also allow for meaningful appellate review.

¶21 Mr. Anderson has established constitutional error with regard to his claim regarding the right to counsel. As the State has met its burden of showing constitutionally harmless error, Mr. Anderson cannot establish prejudice and is not entitled to relief.

¶22 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports, and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.

WE CONCUR:

Siddoway, J.

Lawrence-Berrey, J.