IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

STATE OF WASHINGTON,

Respondent,

v.

CLIFTON KELLY BELL,

Appellant.

No. 67910-4-1

ORDER DENYING MOTION

FOR RECONSIDERATION

WITHDRAWING OPINION

AND SUBSTITUTING OP NION

The appellant, Clifton Kelly Bell, has filed a motion for reconsideration

herein. The respondent, State of Washington, has filed a response. The court

has taken the matter under consideration and has determined that the motion for

reconsideration should be denied.

Now, therefore, it is hereby

ORDERED that the motion for reconsideration is denied; and, it is further

ORDERED that the opinion in the above-referenced case fildd on July 29,

2013, be withdrawn, and a substitute opinion be filed in its place.

DATED this I^ day of CXMol/ ,2013.

'V>3 .

WE CONCUR:

J

C;

f~3 />o

C=> —\CZt*>

2

m

1 o o ~.\.....

,•' -*"'' r

sr

t/)f-*'

73*

~f .-,-;"

k£)

*«

CO

\X>
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

CLIFTON KELLY BELL,

Appellant.

No. 67910-4-

DIVISION ONE

UNPUBLISHED OPINION

FILED: October 14, 201

cp r^

XT

C3

o

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 of exceptional 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 of witness tampering, four counts

of assault, and one count each of rape, unlawful imprisonment, and violation of a nocontact order. Ajury convicted Bell on all counts. The jury also fourjd an aggravating

factor as to count I, second degree assault: "an ongoing pattern

physical, or sexual abuse of the victim manifested by multiple

prolonged period of time."

of psychological,

incidents over a
No. 67910-4-1/2

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

little question that this defendant nearly beat this young lady within an inch of her life,

and that the jury so found. And I think the evidence was overwhelming with regard to

his abuse of her."

Bell appealed, arguing in part that the multiple counts of witness

one unit of prosecution. The State conceded error and this court remanded for

resentencing.

Because the original sentencing judge had retired, his successor, Judge

tampering were

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 and sentencing materials.1 He made thefollowing pertinent

On February 17, 2006, Bell grabbed J.F.'s arm and threw 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 pull her back into the apartment

Bell let go, and J.F. flipped over the rail and landed on her back 15

fractured her hip and suffered internal bleeding.

In late September 2006, J.F. and Bell were eating at a friend's

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,

indings of fact.

, dislocating her

feet below. She

house when J.F.

1 These included the decision in Bell's first appeal, briefing by

defense, transcripts of the original sentencing hearing, the testimony

the State and the

t>f Bell, the victim,

, transcripts and

Bell's family and

the classes Bell

and witness Ryan Anderson, the original judgment and sentence!

recordings of phone calls Bell made while in custody, letters from

friends, photographs of the victim's injuries, documents showing
No. 67910-4-1/3

despite J.F.'s protests, Bell pinned her down and forced her to have intercourse. On

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 siat on her chest,

pinned her arms, and said, "Do you want to see stars?" He proceeded

neck until she could not breathe. Later, he grabbed her hair and pulled

to squeeze her

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 not going anywhere.

At Bell's resentencing, 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 Be both addressed

completed in custody, a statement from Bell's father, a statement

Bell's most recent allocution.

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

piece ofshit" and, as he left the courtroom, referred to them as a "bitch

from the victim, and

ed counsel "a

and a faggot."
No. 67910-4-1/4

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

victim] said and as far as my behavior towards her. Ithink it's unfair for her to say that

the people before her that I dated and the people after her, my, my situation with her

was unique in the fact that she kind of instigated it and irritated it, but I ih no way blame

her for what happened." Echoing statements of defense counsel, Bell told the court that

a longer sentence on remand "has been held vindictive and unconstitutional by the

Supreme Court. . . ." The prosecutor responded that Bell knew when ije 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 njionths, 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 what Mr. Bell. . . riad to say,

but was still disturbed that after fouryears you could not speak about this

fact pattern, this crime, this trial, without still taking a shot at the victim.

You still had to say she instigated... what happened.m

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 Cc-urt, 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. The jury's

special verdict provides a substantial and compelling reason to grant this

exceptional sentence on Count I consecutive to Count XIV. . . . The

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

pattern of abuse was psychological, physical, and sexual. . . . This

sentence ensures punishment that is proportionate to the egregiousness

of the offenses.

Bell appeals.

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 ofthe sentence for abuse ofdiscretion.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.

A court's factual basis for departing from the standard range must generally arise

from facts found by a jury, but the length of a sentence above the standard range may

be based on any matter supported by the record.5 In this case, finding of fact 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 the jury. The other facts recited by

the court in its findings and conclusions were properly considered in determining the

length ofBell's sentence.6

4RCW 9.94A.585(4); State v. 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)).

5 State v. Williams, 159 Wn. App. 298, 314-19, 244 P.3d 1018 (2011); State v. Hvder,

159 Wn.App. 234, 266-66, 244 P.3d 454 (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 permissible

judicial discretion are expanded").

6Williams, 159 Wn. App. at 316.
No. 67910-4-1/6

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

points out that all of these 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 it were 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: it may be outside the standard

range or it may be consecutive to another sentence.8 Citing a series of decisions from

Division Three of this court, Bell contends a sentence that is exceptional in two respects

7Bell claims the record does not support the court'sfinding that he has seven prior adult

misdemeanor convictions that are not accounted for in the standard range. He is

mistaken. His misdemeanor history is discussed in the initial bail summary and the

State's sentencing memorandum filed in 2011.

8Acourt may impose a sentence outside the standard sentence range for an offense 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 or concurrently is an exceptional sentence subject tothe limitations in this

section . . . ." RCW 9.94A.535.
No. 67910-4-1/7

cannot be based on a single aggravating factor.9 The cited decisions, however, are

superseded by ourSupreme Court's decision in State v. Smith.10

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 court disagreed:

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] at 785-86.

However, petitioners fail to read this passage in context. Other

sections of that opinion make it clear that "[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

which includes both sentencing components.'121

In light of Smith, the decisions cited by Bell are no longer viable and his contention

fails.13

9State v. McClure. 64 Wn. App. 528, 827 P.2d 290 (1992); State v. Quigg, 72 Wn. App.

828, 866 P.2d 655 (1994); In re 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).

*° 123 Wn.2d 51, 864 P.2d 1371 (1993), overruled in part on other grounds by State v.

Hughes. 154 Wn.2d 118, 110 P.3d 192 (2005).

11 Smith, 123Wn.2dat57.

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

13 See State v. Flake, 76 Wn. App. 174, 182-83, 883 P.2d 341 (1994) (noting Smith's

implicit rejection of prior cases). Contrary to Bell's assertions, our decision in State 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

Increased Sentence Following Successful Appeal

Bell contends his increased sentence on remand was vindictive and violates due

process. We disagree.

In general, an increased sentence following a successful appeal violates due

process if vindictiveness played a role in the resentencing.14 When the same judge

imposes both the original and post-appeal sentences, a rebuttable presumption of

vindictiveness arises.15 The presumption does not arise, however, when the increased

sentence is imposed by a different judge.16 We explained 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. [Alabama v. ISmith,

490 U.S. [794,] 802[, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989)] ("[T]he

sentencing judge who presides at both trials can be expected to 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, it appears that the defendant's successful appeal

was the motivation for the increased sentence. Under those

circumstances, it is appropriate to apply a presumption of vindictiveness 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

second judge had yet to consider the sentence and exercise discretion in

meting out an appropriate punishment. The second judge 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

14 State v. Parmelee, 121 Wn. App. 707, 708, 90 P.3d 1092 (2004), review denied. 153

Wn.2d 1013 (2005).

15 Parmelee. 121 Wn. App. at 708.

16 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).

8
No. 67910-4-1/9

lenient penalty."' fTexas v. IMcCullough. 475 U.S. [134,] 140, [106 S. Ct.

976, 89 L. Ed. 2d 104 (1986)] (alterations in original) (quoting Colten v.

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

plays a role in sentencing when a differentjudge imposes the more severe

sentence, the presumption of vindictiveness did notarise hereP7]

Our reasoning in Parmelee applies equally here. Because a different judge imposed

Bell's sentence on remand, no presumption of vindictiveness arose. It was therefore

Bell's burden to prove actual vindictiveness.18 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. But equal protection applies only to persons who are similarly situated.19

For purposes of vindictive sentencing rules, defendants resentenced by a different

judge and defendants resentenced by the same judge 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

vindictiveness when a new judge increases a defendant's sentence following appeal.20

Moreover, although we need not decide whether a presumption of vindictiveness

could be rebutted in this case, the State correctly points out that the record before

17121 Wn. App. at 711 (emphasis added) (alterations in original) (footnote omitted).

18 State v. Larson. 56 Wn. App. 323, 328, 783 P.2d 1093 (1989); Smith. 490 U.S. at

799-800 (where there is no reasonable likelihood of actual vindictiveness on the part of

the sentencing authority, "the burden remains upon the defendant to prove actual

vindictiveness").

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

20 See Handlev. 115 Wn.2d at 290 (if persons are similarly situated, equal protection is

violated only if there 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 sentencing judge. 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 it came 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 statement from the victim, J.F.

Significantly, she had not appeared or submitted a statement at the original sentencing.

Her statement powerfully described her ongoing physical suffering from injuries inflicted

by Bell and predicted, somewhat presciently, 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 of the 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 I lived through

after meeting Clifton Bell.

Iwas just now able to save up enough money for partial payment to

have . . . reconstructive surgery on my shoulder on August 20, 2011. I

am now in physical therapy three times per week ....

. . . 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 of that

nerve being pinched to this day I have lower back pain and sometimes

shooting down my leg ifI'm standing too long. . . .

I am scared for the next girl he meets. She may not be as lucky as

Iwas. It only takes 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 if they blame all their

actions on something else?

10
No. 67910-4-1/11

Bell's allocution and J.F.'s statement are nonvindictive reasons that arguably rebut any

presumption of vindictiveness arising from the court's increased sentence.21

Bell also argues that the increased sentence unconstitutionally punished him for

exercising his state constitutional right to appeal22 and that allowing such sentences

impermissibly chills the exercise of that right. He cites no authority indicating that our

state constitutional right to appeal provides him greater protection than the state or

federal due process clauses. Instead, he relies primarily on State v. Sims.23 Sims is

distinguishable.

Sims argued, and the State conceded, that a banishment condition in his special

sex offender sentencing alternative (SSOSA) sentence was unconstitutional. The Court

ofAppeals agreed but held that the trial court on remand would have discretion to either

reimpose a SSOSA with constitutionally tailored conditions or deny a SSOSA

altogether.24 The State Supreme Court reversed the Court ofAppeals in part, ruling that

because Sims only challenged a condition of the SSOSA sentence, and because the

State did not cross-appeal the SSOSA, the State could not seek 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.

21 Parmelee, 121 Wn. App. at 712 (The court also noted that even if the presumption

arises, it may be rebutted if the second sentencing judge provides nonvindictive reasons

for the sentence.).

22 TheWashington State Constitution affords criminal defendants "the right to appeal in

all cases." Wash. Const, art. I, sec. 22.

23 171 Wn.2d 436, 447-49, 256 P.3d 285 (2011).

24 State v. Sims, 152 Wn. App. 526, 534, 216 P.3d 470 (2009).

11
No. 67910-4-1/12

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

resentencing, not just tailoring of a sentence condition. A court has discretion at a full

resentencing to impose any sentence within the authorized range.25 Thus, the Sims

court's concerns are inapplicable here.

More pertinent to our decision here are the United States Supreme Court's

statements in Chaffin v. Stynchcombe.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 to challenge his first conviction either by direct appeal

or collateral 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 of that exercise may indeed "ha[ve] a discouraging effect on the defendant's

assertion of his trial rightsf.]"28 Noting that it had previously held this effect was merely

an "inevitable attribute" of a legitimate system, the court reached the same conclusion

with respect to the risks of a greater sentence following appeal, stating "nothing in the

right to appeal or the right to attack collaterally a conviction . . . 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

25 See State v. Rowland. 174Wn.2d 150, 272 P.3d 242 (2012).

26 412 U.S. 17, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973).

27 Chaffin. 412 U.S. at 29.

28 Chaffin. 412 U.S. at 31.

29 Chaffin, 412 U.S. at 31, 33.

12
No. 67910-4-1/13

effect would seldom be a deterrent of any significance.30 The Court concluded, "[W]e

cannot agree with petitioner that such speculative prospects interfere with the right to

make a free choice whether to appeal."31 It expressly held that "[t]he choice occasioned

by the possibility of a harsher sentence . . . does not place an impermissible burden on

the right of a criminal defendant to appeal or attack collaterally his conviction."32 In light

of this reasoning, which we find persuasive, and the absence of any basis in

Washington law for Bell's claim under the state constitution, we reject it.33

30 Chaffin, 412 U.S. at 33-34.

31 Chaffin, 412 U.S. at 35.

32 Chaffin. 412 U.S. at 35. 33 Bell also cites decisions from other jurisdictions, claiming they support his argument

under the state constitutional right to appeal. A number of these cases rest on due

process principles. Shaoloak v. State. 597 P.2d 142 (Alaska 1979); State v. Violette.

576 A.2d 1359, 1360-61 (Me. 1990); State v. Eden. 163 W. Va. 370, 256 S.E.2d 868,

876 (1979). We have already determined that the sentence in this case did not violate

due process. Of the remaining cases, only a few rest on a state constitutional right to

appeal. Compare People v. Mulier. 12 Mich. App. 28, 162 N.W.2d 292, 295 (1968)

(state constitutional right to appeal); State v. Sorensen. 639 P.2d 179, 180-81 (Utah

1981) (state statute and state constitutional right to appeal), with People v. Henderson.

60 Cal. 2d 482, 386 P.2d 677, 685 (1963) (double jeopardy); State v. Mara. 102 Hawaii

346, 76 P.3d 589, 596-98 (2003) (state statute); State v. Burrell, 772 N.W.2d 459, 469-

70 (Minn. 2009) (judicial policy); State v. Wolf. 46 N.J. 301, 216 A.2d 586, 589 (1966)

(procedural policies). And virtually all of the cases are distinguishable on the ground

that, unlike this case, they did not involve an increased sentence imposed by a different

judge and based on evidence that was not before the original sentencing judge.

Notably, several of the cited cases expressly acknowledge the propriety of an increased

sentence based on new evidence. State v. Partain, 349 Or. 10, 239 P.3d 232, 242

(2010) (allowing increased sentence on resentencing so long as reasons appear on

record and are "based on identified facts of which the first sentencing judge was

unaware"); Commonwealth v. Hyatt. 419 Mass. 815, 647 N.E.2d 1168, 1173-74 (1995)

(increased sentence requires statement of reasoning and of new information); Violette,

576 A.2d at 1360-61 (increased sentence allowed for intervening recidivism); Mulier.

162 N.W.2d at 295 (precluding increased sentence where "record is barren of any

grounds tending to support the harsher sentence").

13
No. 67910-4-1/14

Excessive Sentence

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

excessive only if it shocks the conscience.34 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

of remorse, and J.F.'s powerful statement to the court at resentencing, we conclude his

sentence is not clearly excessive.

Ineffective Assistance of Counsel

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 in the

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.

Many aspects of a criminal prosecution are unpredictable. But such uncertainties

do not make it impossible to render effective assistance of counsel. On the contrary,

counsel can effectively assist their clients by advising them of the risks and possible

outcomes of their decisions. When necessary and appropriate, counsel can advise their

clients of the possibility that a successful appeal could result in a retrial or resentencing

before a different judge who could increase or reduce the original sentence.

Equally meritless is counsel's claim that he may have been ineffective for

exposing Bell to an increased sentence. Even if counsel could have determined that

34 State v. Ritchie. 126 Wn.2d 388, 392, 894 P.2d 1308 (1992) (quoting State v. Ross.

71 Wn.2d 556, 571-72, 861 P.2d 473 (1993)).

14
No. 67910-4-1/15

the original judge had retired and that any resentencing would be before a new judge,

counsel could not have known whether a new judge 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.

.^VtA*,^

WE CONCUR:

15