concurring: I agree with the majority’s decision to reverse the Court of Appeals’ decision in State v. Stovall, No. 100,704, 2010 WL 1379512 (Kan. App. 2010) (unpublished opinion). My rationale for doing so varies from the majority, however.
Court of Appeals Erred in Finding Waiver of Argument
As the majority has explained, the Court of Appeals determined that Stovall had waived any challenge to the erroneous denial of his attorney’s motions to withdraw based upon defense counsel’s conflicts of interest because he did not argue either prejudice or adverse effect in his appellate brief. Stovall, No. 100,704, 2010 WL *3801379512, at *5. Although I agree with the Court of Appeals that Stovall failed to argue prejudice, I disagree with the Court of Appeals’ hard-line conclusion that this failure constituted a waiver of the argument, because Stovall presented a different theory—one that was reasonable and supported by authority—and, in my view, this theory did not foreclose our consideration of the alternative test used by the Court of Appeals in its analysis.
To explain my rationale, I begin with Stovall’s short and to tire point argument in his brief to the Court of Appeals. He declared that “[a] showing that Trial Counsel had an actual conflict would mean an automatic reversal. State v. Ryan, 29 Kan. App. 2d 297, 26 P.3d 707, rev. denied 272 Kan. 1422 (2001).” Stovall’s citation to Ryan was appropriate because Ryan contains language supporting Stovall’s request for automatic reversal upon a showing that defense counsel had a conflict of interest.
In Ryan, the defendant and a codefendant were represented by the same attorney. Donna Marie Ryan attempted to withdraw her plea, arguing her attorney had a conflict of interest. The trial court denied the motion, concluding Ryan suffered no prejudice because of the conflict. The Court of Appeals reversed, stating: “We find that a showing defendant’s attorney had an actual conflict of interest when negotiating a plea agreement requires tire district court to grant defendant leave to withdraw die guilty plea prior to sentencing.” Ryan, 29 Kan. App. 2d at 300. In reaching this conclusion, the Court of Appeals relied on and quoted from this court’s decision in State v. Jenkins, 257 Kan. 1074, 1083-84, 898 P.2d 1121 (1995).
In Jenkins, the defendant was charged with one count of sale of cocaine as a result of a sale to a confidential informant. Jenkins’ attorney had represented the confidential informant on unrelated charges that took place while the informant was supplying information to law enforcement officers, including information that led to the charges against Jenkins. After Jenkins was convicted by a jury, he appealed to the Court of Appeals, arguing his counsel had a conflict of interest and was ineffective. The Court of Appeals determined a conflict did exist, but it affirmed the conviction because Jenkins failed to show that the conflict of interest adversely *381affected his attorneys performance. State v. Jenkins, No. 70,958, unpublished opinion filed October 28, 1994, rev'd 257 Kan. 1074, 898 P.2d 1121 (1995).
On review of the Court of Appeals' decision, this court agreed with the Court of Appeals that defense counsel had an “actual conflict." Jenkins, 257 Kan. at 1087. But this court disagreed with the Court of Appeals’ requirement that the defendant must show the conflict adversely affected his attorney s performance in order to receive a reversal of the conviction. Instead, the court concluded Tenldns was entitled to an automatic reversal. This court broadly held:
“[Wjhere the trial court is advised of the possibility of a conflict by either the defendant or the State, the court is required to initiate an inquiry to insure that the defendant’s Sixth Amendment right to counsel is not violated. In this instance, a showing that there is an actual conflict of interest will result in automatic reversal. See Holloway [v. Arkansas, 435 U.S. 475, 489, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978)]. Prejudice to the defendant is presumed, and reversal of the defendant’s conviction is automatic.” Jenkins, 257 Kan. at 1084.
The Jenkins court also expansively stated that the holding applied to “any situation where there is a possibility defense counsel suffers from any sort of conflict of interest.” Jenkins, 257 Kan. at 1084.
The broad holding in Jenkins would apply in this case, which like Jenkins presents a successive representation case where the potential conflict of interest was made known to the trial court but where, as determined by the Court of Appeals, “the trial court made no real inquiry.” Stovall, 2010 WL 1379512, at *6. Further, despite defense counsel’s repeated pretrial requests to withdraw because of her conflict of interest and her posttrial protest that she could not advocate for Stovall’s posttrial motions without attacking her own performance, the trial court failed to insure that Stovall’s Sixth Amendment right to counsel was not violated. Clearly, defense counsel operated under a conflict of interest because of duties owed to different clients when a possible defense strategy was to point the finger of guilt at a third party who happened to be a former client of Stovall’s defense counsel. Yet another conflict arose when Stovall asked defense counsel to file a motion for new trial based on ineffective assistance of counsel; at that point, coun*382sel’s self-interest was directly in conflict with Stovall’s interests. Under those circumstances, Ryan and Jenkins indicate that Stovall was entitled to automatic reversal.
Hence, Stovall presented the Court of Appeals with precedent for his position, and according to that precedent, he did not need to present an argument regarding the adverse effect any conflict of interest had on his counsel’s performance. In addressing Stovall’s argument, the Court of Appeals did not cite to either Ryan or Jenkins or explain why the rule in tiróse cases did not apply. Instead, in stating that reversal was not automatic, the Court of Appeals cited to Boldridge v. State, 289 Kan. 618, 622, 215 P.3d 585 (2009) (conflict of interest arising because defense counsel had authorized the issuance of subpoenas for telephone records in the investigation of that same case when acting as pro tempore judge), and State v. Carter, 284 Kan. 312, 321, 160 P.3d 457 (2007) (conflict arising from irreconcilable differences between defendant and his attorney). But neither Boldridge nor Carter is a successive representation conflict-of-interest case.
Thus, the Court of Appeals continued a pattern rampant in decisions of this court and the Court of Appeals of failing to recognize the distinctions made by the United States Supreme Court in Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237, 152 L. Ed. 2d 291, reh. denied 535 U.S. 1074 (2002). The Mickens distinctions categorized claims brought under the right to counsel provisions of the Sixth Amendment to the United States Constitution. Those categories and the test to be applied in each category were discussed at length in the majority opinion and in State v. Galaviz, 296 Kan. 168, 180-87, 291 P.2d 62 (2012), and need not be repeated here.
One of tire critical points from Galaviz relating to Stovall’s argument is that the holding in Jenkins was overly broad. Under Mickens, Stovall is not entitled to automatic reversal of his convictions and sentences. See Galaviz, 296 Kan. at 183. The additional essential point relating to this case is that, to date, the United States Supreme Court has not announced the test that applies in a case such as the one presented here—a successive representation case where defense counsel’s conflict of interest was made known to the trial judge, who then failed to adequately inquire about the *383conflict. Galaviz, 296 Kan. at 184. For this reason alone, I would not take the hard-line approach of the Court of Appeals.
In addition, in light of the conflict that has existed in our caselaw and tire confusing nature of the cases applying the adverse effects test in cases where it may not apply, Stovall should not be faulted for arguing for automatic reversal. His reliance on the pre-Mickens cases of Jenkins and Ryan is made even more reasonable in light of the fact that various panels of the Court of Appeals continued to quote the Jenkins holding in post-Mickens decisions. See, e.g., Mitchner v. State, No. 97,729, 2008 WL 2369813 (Kan. App.) (unpublished opinion), rev. denied 287 Kan. 766 (2008).
Further, because Stovall cited authority for his request for automatic reversal, I believe he complied with Supreme Court Rule 6.02(a)(5) (2012 Kan. Ct. R. Annot. 38) (appellant’s brief must include “[t]he arguments and authorities relied on”). While one might argue it is a better practice for a party to present arguments relating to each of two conflicting strands of cases, we have not been this stringent in ineffective assistance of counsel cases. In fact, we have on occasion criticized the Court of Appeals for not sua sponte remanding a case for a hearing under the authority of State v. Van Cleave, 239 Kan. 117, Syl. ¶ 2, 716 P.2d 580 (1986) (ineffective assistance of counsel claims will ordinarily not be heard for first time on appeal, but defendant may request remand to district court for hearing to develop claim). See, e.g., Rowland v. State, 289 Kan. 1076, 1085, 219 P.3d 1212 (2009). Furthermore, in Ga-laviz, under circumstances similar to those in this case, we concluded it was appropriate to remand the case for a Van Cleave hearing even though such a hearing had not been requested by the defendant who, like Stovall, had argued an entitlement to automatic reversal under the holding in Jenkins. Galaviz, 296 Kan. at 194. At a minimum, Stovall is entitled to this same relief.
Consideration of Remedy in Light of the Record
We have on occasion recognized that a record is sufficient to malee an ineffective assistance of counsel determination for the first time on appeal. See, e.g., State v. Gleason, 277 Kan. 624, 650-52, 88 P.3d 218 (2004). The United States Supreme Court recognized *384this possibility in Mickens, 535 U.S. at 173-74. The majority followed this lead in this case, concluding (1) the adverse effects test would be applied because it was the test argued for by the State and (2) the record was sufficient to establish adverse effects. I agree in part, but disagree in other respects. I agree that the State should be held to the test it argued and that the record is sufficient in this case to determine Stovall was denied his right to effective assistance of counsel.
But I am not yet ready to acknowledge one test as more logical than another when faced with a successive representation case. Ultimately, it is possible I would be willing to adopt the majority’s suggested approach of shifting the burden of persuasion to the State. But I note that this option has critics. See Shiner, Conflicts of Interest Challenges Post Mickens v. Taylor: Redefining the Defendant’s Burden in Concurrent, Successive, and Personal Interest Conflicts, 60 Wash. & Lee L. Rev. 965, 1001 (2003). Consequently, I will wait to express an opinion regarding which of the various tests I think should be applied in this situation until the question has been briefed and argued.
Rosen, J., joins in the foregoing concurrence.[[Image here]]