IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OFWASHINGTON, Respondent,

v. CLIFTON KELLY BELL, Appellant. GROSSE, J. — An increased sentence following a criminal defendant's successful appeal violates due process if vindictiveness played a role in the resentencing. Here, Clifton Bell's increased sentence on remand did not violate due process because it was imposed by a different judge and there is no basis for concluding that the sentence was vindictive. Nor is there any basis for concluding that Bell's sentence violates other constitutional protections or rules governing the structure and length ofexceptional sentences. We affirm.
FACTS 

### The State charged Bell with 14 counts of domestic violence against his former girlfriend, J.F. The charges included multiple counts ofwitness tampering, four counts of assault, and one count each of rape, unlawful imprisonment and violation of a no

### contact order. A jury convicted Bell on all counts. Thejury also found an aggravating factor as to count I, second degree assault: "an ongoing pattern of psychological, physical, or sexual abuse of the victim manifested by multiple incidents over a prolonged period oftime." 

### The court imposed an exceptional sentence of 144 months, stating that "[tjhere is 

### little question that this defendant nearly beat this young ladywithin an inch of her life, ) No. 67910-4-1 CO



# COURT STATE ) DIVISION ONE ) UNPUBLISHED OPINION ro



# OF APPEAL : OF WASHir V? ,-->(/•; ) FILED: July 29, 2013 05 ,-•"• -"ZT-.No. 67910-4-1/2 

### and that the jury so found. And Ithink the evidence was overwhelmingwith regard to his abuse ofher." 

### Bell appealed, arguing in part thatthe multiplecounts ofwitness tampering were
one unit of prosecution. The State conceded error and this court remanded for resentencing. 

### Because the original sentencing judge had retired, his successor, Judge Bradshaw, presided over Bell's resentencing. At the outset of the hearing and in subsequent findings, Judge Bradshaw emphasized that he had reviewed a number of 

### transcripts andsentencing materials.1 Hemade thefollowing pertinentfindings offact. On February 17, 2006, Bell grabbed J.F.'s arm and threw her, dislocating her shoulder. On July 26, 2006, Bell pulled her into an apartment and began punching her. When she tried to escape, he closed and bolted the door. She then ran toward the balcony and grabbed the balcony railing as Bell tried to pullherback into the apartment. Bell let go, and J.F. flipped over the rail and landed on her back 15 feet below. She fractured her hip and suffered internal bleeding. In late September 2006, J.F. and Bell were eating at a friend's house when J.F. placed her hand on Bell's leg. Bell angrily accused her ofwiping ketchup on his pants. When she denied it, Bell threw a glass plate that gashed her forehead. That evening, despite J.F.'s protests, Bell pinned her down and forced her to have intercourse. On



### 1 These included the decision in Bell's first appeal, briefing by the State and the defense, transcripts ofthe original sentencing hearing, the testimony of Bell, the victim, and witness Ryan Anderson, the original judgment and sentence, transcripts and 

### recordings of phone calls Bell made while in custody, letters from Bell's family and friends, photographs of the victim's injuries, documents showing the classes Bell 

### completed incustody, a statement from Bell's father, a statement from the victim, and Bell's most recent allocution.No. 67910-4-1/3 

### another occasion, he ignored her refusal to engage in anal sex and penetrated her

anus. 

### On September 23, 2007, Bell threw J.F.'s cell phone and broke it. He then 

### punched her in the eye, grabbed her, and pulled her to the ground. He saton her chest, 

### pinned her arms, and said, "Do you want to see stars?" He proceeded to squeeze her neck until she could not breathe. Later, he grabbed her hair and pulled so hard that he 

### pulled hair out of her scalp. He then locked the front door and removed the key to the deadbolt. Each time J.F. walked toward the door, Bell blocked her path and told her she was notgoing anywhere. 

### At Bell'sresentencing, the prosecutor requested an exceptional sentence of 177 months. He asked the court to consider a number of factors, including Bell's conduct 

### during the trial,2 the statement J.F. submitted for resentencing, and the fact that the vacated witness tampering counts were redundant and relatively insignificant in the context of Bell's other crimes. The prosecutor played recordings of phone conversations between Bell and the victim and a tape of Bell soliciting someone to 

### "[b]eat the bitch in the fucking face! She's a fucking rat!" The prosecutor also read J.F.'s written statement into the record. 

### Defense counsel requested a total sentence of 104 months. Counsel told the court that Bell "is here to accept responsibility." Bell's father and Bell both addressed 

### the court. Bell began by stating, "I'm not here to take any weight awayfrom what [the 

### victim] said and as far as my behaviortowards her. Ithink it'sunfairfor her to say that 

### the people before her thatIdated and the people afterher, my, my situation with her
wasunique inthe fact that she kind ofinstigated itandirritated it, butIin no wayblameNo. 67910-4-1/4 

### herforwhat happened." Echoing statements ofdefense counsel, Bell told the courtthat

a longer sentence on remand "has been held vindictive and unconstitutional by the Supreme Court. . . ." The prosecutor responded that Bell knew when he appealed that

a resentencing could occur and that "[sjometimes re-sentencings are better for Defendants, sometimes they're worse." The court imposed an increased exceptional sentence of 168 months, doubling the top of the standard range on count I and running that sentence consecutive to the remaining counts. The court stated: So, in looking at what should be doubled within [the standard range], I came back to the
. . . facts. /come back to whatMr. Bell. . . had to say, but was stilldisturbed that after fouryears you could not speak about this fact pattern, this crime, this trial, without still taking a shot at the victim. 

### Youstillhadtosay she instigated... whathappened.[3] In its conclusions of law, the court stated it had "exercised independent discretion" and "based its sentence on the data legitimately before the court and not on 

### the fact of . . . the original appeal which is of course a matter of right." The court concluded that Bell's 

### pattern of abuse against [J.F.], found beyond a reasonable doubt by the 

### jury, warrants an exceptional sentence upward, and the Court, in its discretion, finds that doubling the high end of the standard range and 

### running it consecutively to Count XIV, one of the most heinous of the defendant's crimes
... is an appropriate sanction in this case. Thejury's 

### special verdict provides a substantial and compelling reason to grant this exceptional sentence on Count I consecutive to Count XIV.
. . . The 

### pattern of abuse was psychological, physical, and sexual. . . . This sentence ensures punishment that is proportionate to the egregiousness ofthe offenses. Bell appeals.



### 2When J.F. took the stand, Bell called her "a bitch and a cunt." He called counsel "a 

### piece ofshit" and, as he leftthe courtroom, referred to them as a "bitch and afaggot."

(Emphasis added.)No. 67910-4-1/5 ANALYSIS 

### Bell's arguments on appeal concern the increased exceptional sentence imposed
on remand. We review the court's reasons for imposing an exceptional sentence de 

### novo and the length of the sentenceforabuseofdiscretion.4 Exceptional Sentence 

### Bell first contends the court improperly relied on facts not found by the jury in imposing an exceptional sentence. The court's findings and conclusions indicate
otherwise. Acourt's factual basis for departing from the standard range mustgenerally arise from facts found by a jury, but the length of a sentence above the standard range may 

### be based on anymatter supported bythe record.5 In this case, finding offact 11 and conclusion of law 9 demonstrate that the court's decision to depart from the standard range was based on the aggravating factorfound by thejury. The otherfacts recited by the court in its findings and conclusions were properly considered in determining the 

### lengthofBell's sentence.6 Bell contends he lacked notice that the court would consider his criminal history and other facts, that these facts were not found by a jury, and that they inhere in the 

### verdict and therefore do not support an exceptional sentence.7 The State correctly

4RCW9.94A.585(4); Statev. Hale, 146Wn. App. 299, 307, 189 P.3d 829(2008); State v. Law, 154 Wn.2d 85, 93, 110 P.3d 717 (2005) (quoting State v. Ha'mim, 132 Wn.2d 834, 840, 940 P.2d 633 (1997)). 

### 5State v. Williams, 159Wn. App. 298, 314-19, 244 P.3d 1018(2011): State v. Mail. 65 Wn. App. 295, 299, 828 P.2d 70 (1992) (once a jury's finding provides the basis for an exceptional sentence, "the available sentence length choices and, thus, the limits of permissiblejudicial discretion are expanded"). 

### 6Williams, 159Wn. App. at316. 7Bell claims the record does not support the court'sfinding that he has seven prioradult misdemeanor convictions that are not accounted for in the standard range. He isNo. 67910-4-1/6 

### points out that all ofthese arguments proceed from the same flawed premise, i.e., "that the court's findings of fact and conclusions of law enumerated individual bas[e]s for an exceptional sentence, and each individual finding should be analyzed as if itwere an aggravating [factor] supporting [an] exceptional sentence." As discussed above, the challenged facts were neither recited for, nor necessary to justify the court's departure from the standard range and were properly considered in determining the length of
Bell's sentence. Next, Bell contends the court could not exceed the standard range and impose consecutive sentences based on a single aggravating factor. We disagree. 

### The Sentencing Reform Act of 1981 (SRA), chapter 9.94A, provides that a sentence may be exceptional in two different respects: itmay be outside the standard 

### range oritmay beconsecutivetoanothersentence.8 Citing a seriesofdecisionsfrom Division Three ofthis court, Bell contends a sentence that is exceptional intwo respects 

### cannot be based on a single aggravating factor.9 Thecited decisions, however, are 

### supersededbyourSupremeCourt'sdecisionin Statev. Smith.10

mistaken. His misdemeanor history is discussed in the initial bail summary and the State's sentencing memorandumfiled in2011. 

### 8Acourtmay impose a sentence outsidethe standard sentence rangeforanoffense if it finds there are "substantial and compelling reasons justifying an exceptional sentence." RCW 9.94A.535. The statute also explains that "[a] departure from the standards in RCW 9.94A.589(1) and (2) governing whether sentences are to be served 

### consecutively orconcurrently is an exceptional sentence subjectto the limitations in this section . . . ." RCW 9.94A.535. 

### 9State v. McClure, 64 Wn.App. 528, 827 P.2d 290 (1992);Statev.Quiqq,72 Wn.App. 828, 866 P.2d 655 (1994); Inre Pers. Restraint of Holmes. 69 Wn. App. 282, 848 P.2d 754 (1993). overruled on other grounds by State v. Calle, 125 Wn.2d 769, 888 P.2d 155 (1995). 

### TM123Wn.2d51, 864 P.2d 1371 (1993), overruledin part on other grounds by State v. Hughes, 154Wn.2d 118,110 P.3d 192 (2005).No. 67910-4-1/7 

### In Smith, the defendant argued that the trial court could not impose a sentence 

### that was both outside the standard range and consecutive on the same count.11 The Smith courtdisagreed: Petitioner cites language from State v. Batista. 116 Wn.2d 777, 808 P.2d 1141 (1991): "If a presumptive sentence is clearly too lenient, this problem could be remedied either by lengthening concurrent sentences, or by imposing consecutive sentences." Batista. [116 Wn.2d] at785-86. However, petitioners fail to read this passage in context. Other sections ofthat opinion make itclearthat "[w]here multiple current offenses are concerned, in addition to lengthening of sentences, an exceptional sentence may also consist of imposition of consecutive sentences where concurrent sentencing is otherwise the standard.".... Batista, [116 Wn.2d] at 785-86. Indeed, in State v. Oxborrow. 106 Wn.2d 525, 723 P.2d 1123 (1986), we upheld an exceptional sentence which was both beyond the standard range and consecutive. The SRA itself supports no other result. Thus, we hold that it is permissible to impose an exceptional sentence 

## whichincludesbothsentencingcomponents)121 In light of Smith, the decisions cited by Bell are no longer viable and his contention fails.13 Increased Sentence Following Successful Appeal 

### Bell argues that the increased sentence imposed on remand "unconstitutionally 

### punished" his exercise of his state constitutional right to appeal. App. Br. at 25. 

### Nothing in the record or Washington law supports Bell's claim that his increased sentence punished him for appealing his sentence. Our courts refer to such

11 Smith. 123Wn.2dat57. 

### 12 Smith, 123 Wn.2d at 57-58. 

### 13 See State v. Flake. 76Wn. App. 174, 182-83, 883 P.2d 341 (1994) (noting Smith's implicit rejection of priorcases). Contrary to Bell's assertions, our decision inState v. Stewart. 72 Wn. App. 885, 901, 866 P.2d 677 (1994) did not address whether a single 

### aggravating factor could support consecutive sentences and a sentence above the standard range.No. 67910-4-1/8 punishment as judicial "vindictiveness" and have developed guidelines for addressing it.14 In general, an increased sentence following a successful appeal violates due 

### process ifvindictiveness played a role in the resentencing.15 When the samejudge imposes both the original and post-appeal sentences, a rebuttable presumption of 

### vindictiveness arises.16 Thepresumption does not arise, however, when theincreased 

### sentence isimposed by a differentjudge.17 Weexplained the reasons for this rule in
State v. Parmelee: 

### Concerns about judicial vindictiveness arise when the judge fully considers a sentence and renders a decision, and then, after a successful 

### appeal, changes the sentence without explanation. rAlabama v. ISmith, 490 U.S. [794,] 802[, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989)] ("[T]he 

### sentencingjudgewho presides at both trials can be expectedto operate in the context of roughly the same sentencing considerations after the second trial as he does after the first; any unexplained change in the 

### sentence is therefore subject to a presumption of vindictiveness."). Without an explanation, itappears thatthe defendant's successful appeal was the motivation for the increased sentence. Under those 

### circumstances, it is appropriateto apply a presumption ofvindictiveness to 

### protect against actual vindictiveness and the chilling effect that perceived vindictiveness may have. The same concerns, however, are not present 

### here because different judges imposed the different sentences. The 

### secondjudge had yet to consider the sentence and exercise discretionin meting out an appropriate punishment. The secondjudge did not have a 

### personal stake in the first sentence and therefore did not have a personal motive for vindictiveness. Additionally, "'[i]t may often be that the [second 

### sentencer] will impose a punishment more severe than that received from 

### the [first]. But it no more follows that such a sentence is a vindictive penalty for seeking a [new] trial than that the [first sentencer] imposed a 

### lenientpenalty.'" fTexasv. IMcCullough. 475 U.S. [134,] 140, [106 S. Ct. 976, 89 L. Ed. 2d 104 (1986)] (alterations in original) (quoting Colten v. 14 State v. Parmelee, 121 Wn. App. 707, 708, 90 P.3d 1092 (2004), reviewdenied, 153 Wn.2d 1013 (2005) 

### 15 Parmelee, 121 Wn. App. at 708. 16 Parmelee, 121 Wn.App. at 708. 17 Parmelee, 121 Wn. App. at 709-12. The Ninth Circuit Court of Appeals came to the 

### same conclusion in an unpublished decision rejecting Parmelee's appeal of a habeas action in which he raised the same issue. Parmelee v. Clarke, 251 Fed. App'x 450 (9th Cir. 2007). 8No. 67910-4-1/9 

### Kentucky, 407 U.S. 104, 117, 92 S. Ct. 1953, 32 L. Ed. 2d 584 (1972)). Because there is not a reasonable likelihood that actual vindictiveness 

### playsa role insentencing when a different judgeimposes the more severe 

### sentence, thepresumptionofvindictivenessdidnotarisehere.'181 Our reasoning in Parmelee applies equally here. Because a differentjudge imposed Bell's sentence on remand, no presumption of vindictiveness arose. It was therefore 

### Bell's burden toproveactualvindictiveness.19 He has not done so. Bell concedes Parmelee is on point but contends it is wrongly decided. He argues that providing a presumption of vindictiveness for defendants resentenced by the same judge but not for those resentenced by a different judge violates equal 

### protection. Butequalprotection appliesonlyto personswhoaresimilarlysituated.20For purposes of vindictive sentencing rules, defendants resentenced by a different judge and defendants resentenced by the samejudge are not similarly situated. And even if they were, treating them differently would not violate equal protection because, as 

### explained in Parmelee, there is a rational basis to deny the presumption of 

### vindictivenesswhen anewjudgeincreasesadefendant's sentencefollowing appeal.21 Moreover, although we need not decide whether a presumption ofvindictiveness could be rebutted in this case, the State correctly points out that the record before


### 18121 Wn. App. at711 (emphasis added)(alterations in original) (footnoteomitted). 19 State v. Larson, 56Wn. App. 323, 328, 783 P.2d 1093 (1989); Smith, 490 U.S. at 799-800 (where there is no reasonable likelihood ofactual vindictiveness on the part of the sentencing authority, "the burden remains upon the defendant to prove actual vindictiveness"). 

### 20 State v.Handlev. 115Wn.2d 275, 289-90, 796 P.2d 1266 (1990). 

### 21 See Handlev, 115Wn.2d at 290 (ifpersons are similarly situated, equalprotection is violated only ifthere is no rational basis for the differentiation among the various class members).No. 67910-4-1/10 

### Judge Bradshaw differed from the record before the original sentencingjudge. During his allocution before Judge Bradshaw, Bell accused J.F. of instigating the domestic violence. Although Bell's blame-shifting was not new, this time itcame after years of incarceration and ample time to reflect. Judge Bradshaw emphasized this point in explaining the reasons for his sentence. Judge Bradshaw also received a lengthywritten statementfrom the victim, J.F. Significantly, she had not appeared or submitted a statementatthe original sentencing. Her statementpowerfully described herongoing physical suffering from injuries inflicted by Bell and predicted, somewhatpresciently, Bell's failure to change: As a result of torn ligaments and shredded cartilage, my shoulder continued to repeatedly come out of the socket sometimes as frequently as every week. Simple things like reaching for my seat belt or raising my arm to wash my hair became almost impossible to do without my arm 

### rolling out ofthe socket. Anyone who's had their arm detached from the socket knows the excruciating pain that comes along with each dislocation. This has been a constant reminder of the hell Ilived through aftermeeting Clifton Bell. Iwasjust now able to save up enough moneyfor partial paymentto have
. . . reconstructive surgery on my shoulder on August 20, 2011. I am now inphysical therapythree times perweek
....



### . . . One of my three fractures was in my S1 joint, this is where the sciatic nerve starts and runs all the way down the leg. As a result ofthat 

### nerve being pinched to this day I have lower back pain and sometimes shooting down my leg ifI'm standing too long..
. . Iam scared forthe next girl he meets. She may not be as lucky as 

### Iwas. It onlytakes one wrong fall to hit your head and neverwake up. I do not believe . . . Clifton is any better of a person today than he was before he went to prison. He'll be the first to blame his incarceration on 

### the system, and that he did nothing wrong. This illustrates his type of character, or lack of. How can someone change ifthey blame all their actions on something else?

10No. 67910-4-1/11 Bell's allocution and J.F.'s statement are nonvindictive reasons that arguably rebut any 

### presumptionofvindictivenessarisingfromthecourt's increased sentence.22 We reject Bell's related claim that the possibility of an increased sentence impermissibly "chilled" his right to appeal. In support, he relies primarily on State v. 

### Sims.23 Sims isdistinguishable. Sims argued, and the State conceded, that a banishment condition in his special
sex offendersentencing alternative (SSOSA) sentence was unconstitutional. The Court ofAppeals agreed but held thatthe trial court on remand would have discretion to either 

### reimpose a SSOSA with constitutionally tailored conditions or deny a SSOSA 

### altogether.24 The StateSupremeCourtreversedtheCourtofAppeals inpart, rulingthat because Sims only challenged a condition of the SSOSA sentence, and because the State did notcross-appeal the SSOSA, the State could notseek denial of the SSOSA 

### on remand. Although the Supreme Court acknowledged that such relief would be available under RAP 2.4(a) if demanded by the necessities of the case, it concluded such necessities had not been shown, particularly given the chilling effect such relief would have on Sims' constitutional right to appeal. 

### Unlike Sims, however, Bell raised issues on appeal that required a full 

### resentencing, not justtailoring of a sentence condition. Acourt has discretion at afull 

## resentencing to impose any sentence within the authorized range.25 Thus, the Sims court's concerns are inapplicable here.



### 22 Parmelee, 121 Wn. App. at 712 (The court also noted that even ifthe presumption 

### arises, itmay berebutted ifthe second sentencing judgeprovides nonvindictive reasons for the sentence.). 

### 23 171 Wn.2d 436, 447-49, 256 P.3d 285 (2011). 24 Statev. Sims, 152Wn. App. 526, 534, 216 P.3d 470 (2009). 25 See State v. Rowland, 174Wn.2d 150, 272 P.3d 242 (2012).
11No. 67910-4-1/12 More pertinent is the United States Supreme Court's decision in Chaffin v. 

### Stvnchcombe.26 Chaffin argued "that harsher sentences on retrial are impermissible because, irrespective of their causes and even conceding that vindictiveness plays no discernible role, they have a 'chilling effect' on the convicted defendant's exercise of his 

### right tochallenge his first conviction either by direct appeal orcollateral attack."27 In rejecting this argument, the Supreme Court compared the decision to appeal with the decision to plead guilty. The Court noted that every time a defendant rejects a plea 

### bargain and exercises his right to trial,the potential negative result ofthatexercise may 

## indeed "ha[ve] adiscouraging effecton thedefendant's assertion ofhis trial rights[.]"28 Noting that it had previously held this effect was merely an "inevitable attribute" of a 

### legitimate system, the courtreached the same conclusionwith respectto the risks of a greater sentence following appeal, stating "nothing in the right to appeal or the right to attack collaterally a conviction
. . . which elevates those rights above the rights to jury trial.
. . ,"29 

### The Court also noted that, given all the contingencies that would need to occur for a harsher sentence devoid of vindictiveness to actually occur, the alleged chilling 

### effect would seldom be a deterrent ofany significance.30 The Court concluded "we cannot agree with petitioner that such speculative prospects interferewith the right to 

### make a freechoicewhethertoappeal."31 Itexpresslyheldthat"[t]hechoiceoccasioned by the possibility of a harsher sentence . . . does not place an impermissible burden on

26412 U.S. 17, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973). 27 Chaffin, 412 U.S. at29. 28 Chaffin, 412 U.S. at 31
. 29 Chaffin, 412 U.S. at 31, 33. 30 Chaffin, 412 U.S. at 33-34. 31 Chaffin, 412 U.S. at 35.
12No. 67910-4-1/13 

### the right of a criminal defendantto appeal or attackcollaterally his conviction."32 This reasoning, which we find persuasive, defeats Bell's claim. Excessive Sentence 

### Bell asserts that his increased sentence is clearly excessive. A sentence is 

### excessive only if it shocks the conscience.33 Considering Bell's repeated acts of domestic violence, the vicious nature of his attacks, the resulting injuries to the victim, his attempts to recruit others to intimidate J.F. and prevent her from testifying, his lack ofremorse, and J.F.'s powerful statementto the court at resentencing, we conclude his sentence is notclearly excessive. Ineffective Assistance ofCounsel Last, Bell argues that the unpredictability of a judge's retirement makes it impossible for defense counsel to render effective assistance regarding the risks of appeal. He also argues that his counsel in his first appeal, who is also counsel inthe current appeal, was ineffective for employing a strategy that resulted in a longer sentence. He contends he should be afforded conflict-free counsel to argue this issue. These arguments are meritless. 

### Manyaspects of a criminalprosecution are unpredictable. Butsuch uncertainties do not make it impossible to render effective assistance of counsel. On the contrary, 

### counsel can effectively assist their clients by advising them ofthe risks and possible outcomes oftheirdecisions. When necessary and appropriate, counsel can advise their 

### clients ofthe possibility that a successful appeal could result in a retrial or resentencing before a differentjudgewho could increase or reduce the original sentence.


### 32 Chaffin, 412 U.S. at 35. 

### 33 State v. Ritchie, 126 Wn.2d 388, 392, 894 P.2d 1308 (1992) (quotingState v. Ross, 71 Wn.2d 556, 571-72, 861 P.2d 473 (1993)).
13No. 67910-4-1/14 

### Equally meritless is counsel's claim that he may have been ineffective for exposing Bell to an increased sentence. Even ifcounsel could have determined that 

### the originaljudge had retired and that any resentencing would be before a newjudge, counsel could not have known whether a newjudge would impose a different sentence. On this record, there is no basis to conclude that the performance of Bell's counsel in his first appeal was deficient or to appoint conflict-free counsel to argue the point in this appeal. Affirmed.



### £a -A. £QAr WE CONCUR:

14