    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                         )       No. 67910-4-1                      CO
                    Respondent,
                                         )       DIVISION ONE
                                                                                    ro
         v.

                                         )       UNPUBLISHED OPINION
CLIFTON KELLY BELL,
                                                                                            ,-->(/•;
                                                                                    V?
                    Appellant.           )       FILED: July 29,   2013             05      ,-•"• -"ZT-.




      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 no-     :ASOWTATSFHEirCOAOPUEFRATL
contact order. A jury convicted Bell on all counts. The jury 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 of time."

      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,
No. 67910-4-1/2

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 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 and sentencing materials.1 He made the following pertinent findings 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 pull her back 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 of wiping 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 of the 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 in custody, 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 sat on 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 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 Bell both addressed

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. I think 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 in no way blame
No. 67910-4-1/4


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 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 what Mr. Bell. . . had to say,
      but was still disturbed that after four years 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.[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. The jury'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
      of the offenses.


Bell appeals.




2 When J.F. took the stand, Bell called her "a bitch and a cunt." He called counsel "a
piece of shit" and, as he left the courtroom, referred to them as a "bitch and a faggot."
 (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 sentence for abuse of discretion.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 factor found by the jury. The other facts recited by

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

length of Bell'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



4 RCW 9.94A.585(4); State v. Hale, 146 Wn. 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. 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.
7 Bell claims the record does not support the court's finding that he has seven prior adult
misdemeanor convictions that are not accounted for in the standard range.            He is
No. 67910-4-1/6

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

cannot be based on a single aggravating factor.9 The cited decisions, however, are
superseded by our Supreme Court's decision in State v. Smith.10




mistaken. His misdemeanor history is discussed in the initial bail summary and the
State's sentencing memorandum filed in 2011.
8A court 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 to the limitations in this
section . . . ." RCW 9.94A.535.
9 State v. McClure, 64 Wn. App. 528, 827 P.2d 290 (1992); State v. Quiqq, 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).
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 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

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. 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

punishment as judicial "vindictiveness" and have developed guidelines for addressing

it.14

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

process if vindictiveness played a role in the resentencing.15 When the same judge
imposes both the original and post-appeal sentences, a rebuttable presumption of

vindictiveness arises.16 The presumption does not arise, however, when the increased

sentence is imposed by a different judge.17 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. rAlabama 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
        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.

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 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).

                                              8
No. 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
       plays a role in sentencing when a differentjudge imposes the more severe
       sentence, the presumption of vindictiveness did not arise here.'181

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.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. But equal protection applies only to persons who are similarly situated.20 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.21
       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



18121 Wn. App. at 711 (emphasis added) (alterations in original) (footnote omitted).
19 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").
20 State v. Handlev. 115 Wn.2d 275, 289-90, 796 P.2d 1266 (1990).
21 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 lengthy written 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.
             I was 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 if I'm standing too long.. . .


             I am scared for the next girl he meets. She may not be as lucky as
      I was. It only takes one wrong fall to hit your head and never wake 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 ofvindictiveness arising from the court'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 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

of Appeals 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.

       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.



22 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.).
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).
25 See State v. Rowland, 174Wn.2d 150, 272 P.3d 242 (2012).

                                               11
No. 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 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 rights[.]"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 . . . 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 of any significance.30 The Court concluded "we
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



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.
30 Chaffin, 412 U.S. at 33-34.
31 Chaffin, 412 U.S. at 35.

                                             12
No. 67910-4-1/13


the right of a criminal defendant to appeal or attack collaterally 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

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.


32 Chaffin, 412 U.S. at 35.
33 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)).

                                             13
No. 67910-4-1/14


       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

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.




                                                             £a
                                                           £QAr         -A.
WE CONCUR:




                                             14
