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 

### ORDERDENYINGMOTION FOR RECONSIDERATION WITHDRAWING OPINION AND SUBSTITUTING OP NION

The appellant, Clifton Kelly Bell, has filed a motion for reconsideration herein. The respondent, State ofWashington, has filed a response. The court has taken the matter under consideration and has determined thatthe motion for reconsideration should be denied. Now, therefore, it is hereby ORDERED thatthe motion for reconsideration is denied; and, it is further 

### ORDERED that the opinion in the above-referenced casefildd onJuly 29, 2013, be withdrawn, and a substitute opinion be filed in its place. 

## DATEDthis I^ dayof CXMol/ ,2013.

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WE CONCUR: 

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*« 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 No. 67910-4- DIVISION ONE UNPUBLISHED OPINION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 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

## contactorder. Ajuryconvicted Bell on all counts. Thejury alsofourjd 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 aNo. 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 Ithink the evidence was overwhelming with regard to
his abuse of her." Bellappealed, arguing inpartthat the multiple counts ofwitness 

### 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 Hemadethefollowing pertinent On February 17, 2006, Bell grabbed J.F.'s arm and threw her 

### shoulder. On July 26,2006, Bell pulled herinto an apartment and began punching her When she tried to escape, he closed and bolted the door. She then ran toward the 

### balconyand grabbed thebalcony railing as Belltried topull her backinto theapartment 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 herhand onBell's leg. Bell angrily accused her ofwiping ketchup onhis 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>fBell, 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 showingNo. 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 inthe eye, grabbed her, and pulled herto the ground. He siaton herchest, 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 ofher 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'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 thefact 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 heleftthecourtroom, referred to them as a "bitch from the victim, and ed counsel "a and a faggot."No. 67910-4-1/4 the court. Bellbegan by stating, "I'm not here to take any weight away from what [the victim] said and as far as my behaviortowards her. Ithink it's unfair for her to saythat the people before her that Idated and the people after her, my, my situation with her
was unique inthe fact that she kind ofinstigated itand irritated it, but Iih no way blame her for what happened." Echoing statements ofdefense counsel, Bell told the court that 

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

## SupremeCourt.
. .." TheprosecutorrespondedthatBellknewwhenijeappealedthat
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 Iand running that sentence consecutive to the remaining counts. The court stated: range], I 

### So, in looking at what should be doubled within [the standard came back to the
. . . facts. / come back to what Mr. Bell. . . riad to say, but was still disturbed that after fouryears you could notspeak about this 

### fact pattern, this crime, this trial, without still taking a shot atthe victim. 

### Youstillhadtosaysheinstigated... whathappened.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 ofright." The court
concluded that Bell's 

### pattern ofabuse 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 grantthis 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 ofthe 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 thelength ofthe sentenceforabuse 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. 

### Acourt's factual basis fordeparting from the standard range must generally arise 

### from facts found by a jury, but the lengthof a sentence above the standard range may 

### be basedon any matter supported by therecord.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 theaggravating factorfound by thejury. The other facts recited by the court in its findings and conclusions were properly considered in determining the 

### lengthofBell'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)). 

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

### 159Wn.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 judicialdiscretion 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 ofthese arguments proceed from the same flawed premise, i.e., "that 

### the court's findings of fact and conclusions of lawenumerated 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 oritmay be consecutiveto anothersentence.8 Citing aseries ofdecisionsfrom Division Three of this court, Bellcontends a sentence that is exceptional in two respects



### 7Bell claimstherecord does not support the court'sfinding that he has seven prioradult 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 in2011. 

### 8Acourtmay impose a sentenceoutsidethestandard sentencerange for anoffense 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 whethersentences are to be served 

### consecutivelyorconcurrently is anexceptional sentence subjecttothelimitations inthis 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 byourSupremeCourt's decision in Statev. Smith.10 In Smith, the defendant argued that the trial court could not impose a sentence 

### that was both outside the standard range andconsecutive on the same count.11 The Smith courtdisagreed: Petitioner cites language from State v. Batista. 116 Wn.2d 777, 808 P.2d 1141 (1991); "Ifa presumptive sentence is clearly too lenient, this problem 

### could be remedied either by lengthening concurrent sentences, or by imposing consecutive sentences." Batista, [116Wn.2d] at 785-86. However, petitioners fail to read this passage in context. Other 

### sections of that opinion make itclearthat "[w]here multiplecurrent offenses are concerned, in addition to lengthening of sentences, an exceptional 

### sentence may also consist of imposition of consecutive sentences where concurrentsentencing is otherwise the standard.".... Batista. [116Wn.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 ofSmith, the decisions cited by Bell are no longer viable and his contention fails.13



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

### 828, 866 P.2d 655 (1994); In rePers. Restraint ofHolmes, 69Wn. App. 282, 848 P.2d 

### 754 (1993), overruled onothergrounds by Statev. Calle. 125Wn.2d 769, 888 P.2d 155 (1995). 

### *° 123 Wn.2d 51, 864 P.2d 1371 (1993), overruled in parton othergrounds by Statev. Hughes. 154Wn.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 ofprior cases). Contrary toBell's assertions, ourdecision in Statev. Stewart. 72Wn. 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 ifvindictiveness played a role in the resentencing.14 When the samejudge imposes both the original and post-appeal sentences, a rebuttable presumption of 

### vindictiveness arises.15 Thepresumption does not arise, however, when the increased 

### sentence is imposed by a differentjudge.16 We explained thereasons 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 bothtrials 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 againstactual vindictiveness and the chilling effectthatperceived vindictiveness may have. The same concerns, however, are not present 

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

### second judge had yet toconsiderthe sentence and exercisediscretion in meting out an appropriate punishment. The second judgedid not have a 

### personal stake in thefirst sentence andtherefore 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 thatreceived 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 Statev. 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. at709-12. The Ninth Circuit Court ofAppeals came to the same conclusion in an unpublished decision rejecting Parmelee's appeal of a habeas actionin which he raised the same issue. Parmelee v. Clarke, 251 Fed. App'x 450 (9th Cir. 2007).

8No. 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 insentencing when a different judge imposes the more severe 

### sentence, thepresumptionofvindictivenessdidnotarisehereP7] 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 toprove actualvindictiveness.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 

### vindictivenesswhenanewjudgeincreases adefendant's sentencefollowing appeal.20 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 

### 17121 Wn. App. at711 (emphasis added) (alterations in original) (footnote omitted). 18 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 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. 115Wn.2d at 290 (ifpersons are similarly situated, equal protection 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 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 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 notappeared or submitted a statementat the original sentencing. Her statement powerfullydescribed herongoing physical suffering from injuries inflicted byBell 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 myseat belt orraising 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 Ilived through after meeting Clifton Bell. 

### Iwas just now able tosave up enough money for partial payment to 

### have . . . reconstructive surgery on my shoulder on August 20, 2011. I am now in physical therapythree times per week
.... 

### . . . One of my three fractures was in my S1joint, 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 Ihave lower back pain and sometimes shooting down my leg ifI'mstanding too long. . . .


### Iam scared for the nextgirl he meets. She may not be as lucky as 

### Iwas. Itonly takes onewrong fall tohityour 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 lackof. How can someone change if they 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 

### presumptionofvindictiveness arisingfromthecourt'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 butheld that thetrial courtonremand would havediscretion to either 

### reimpose a SSOSA with constitutionally tailored conditions or deny a SSOSA altogether.24 The StateSupreme CourtreversedtheCourtofAppeals in part, rulingthat 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 ifthe presumption arises, itmayberebutted ifthe second sentencing judgeprovides nonvindictive reasons for the sentence.). 

### 22TheWashington StateConstitution affords criminal defendants "therighttoappeal in all cases." Wash. Const, art. I, sec. 22. 23 171 Wn.2d 436, 447-49, 256 P.3d 285 (2011). 

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

11No. 67910-4-1/12 

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

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

### assertion ofhis trial rightsf.]"28 Noting thatit hadpreviously held this effectwasmerely
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 

### abovetherightstojurytrial.
. . ."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). 26412 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.

12No. 67910-4-1/13 

### effect would seldom be a deterrent of anysignificance.30 TheCourt concluded, "[W]e cannot agree with petitioner that such speculative prospects interfere with the right to 

### make a freechoicewhethertoappeal."31 Itexpressly held that"[t]hechoice occasioned by the possibility of a harsher sentence . . . does not place an impermissible burden on 

### therightof acriminal defendantto appeal orattackcollaterally his conviction."32 In light of this reasoning, which we find persuasive, and the absence of any basis in 

### Washington lawfor Bell's claim underthe stateconstitution, werejectit.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 otherjurisdictions, 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. Ofthe 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) (doublejeopardy); 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 ofreasoning 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 supportthe harshersentence").

13No. 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 ofremorse, 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. 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 of the risks and possible outcomes of their decisions. When necessary and appropriate, counsel can advise their 

### clients of the possibilitythat a successful appeal could result in a retrial or resentencing before a differentjudge 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 ifcounsel 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)).

14No. 67910-4-1/15 

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

### hisfirst appeal was deficient or to appoint conflict-free counsel to argue the point in this appeal. Affirmed. 

# .^VtA*,^

WE CONCUR:

15