State Of Washington v. Clifton Kelly Bell ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON,
No. 67910-4-1
Respondent,
ORDER DENYING MOTION
v. FOR RECONSIDERATION
WITHDRAWING OPINION
CLIFTON KELLY BELL, AND SUBSTITUTING OP NION
Appellant.
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2013, be withdrawn, and a substitute opinion be filed in its place.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 67910-4-
cp r^ o
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
CLIFTON KELLY BELL,
XT
Appellant. FILED: October 14, 201 C3
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-
contact order. Ajury convicted Bell on all counts. The jury also fourjd 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."
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 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 indings of fact.
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,
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 t>f 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
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 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 Be both addressed
completed in custody, a statement from Bell's father, a statement from the victim, and
Bell's most recent allocution.
2When J.F. took the stand, Bell called her "a bitch and a cunt." He cal ed counsel "a
piece of shit" and, as he left the courtroom, referred to them as a "bitch 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. 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 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 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
4 RCW 9.94A.585(4); State v. Hale, 146 Wash. App. 299, 307, 189 P.3d 829 (2008); State
v. Law, 154 Wash. 2d 85, 93, 110 P.3d 717 (2005) (quoting State v. Ha'mim, 132 Wash. 2d
834, 840, 940 P.2d 633 (1997)).
5 State v. Williams, 159 Wash. App. 298, 314-19, 244 P.3d 1018 (2011); State v. Hvder,
159 Wash. App. 234, 266-66, 244 P.3d 454 (2011); State v. Mail, 65 Wash. 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 Wash. 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
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
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.
No. 67910-4-1/7
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
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 Wash. 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 Wash. 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 Wash. App. 528, 827 P.2d 290 (1992); State v. Quigg, 72 Wash. App.
828, 866 P.2d 655 (1994); In re Pers. Restraint of Holmes, 69 Wash. App. 282, 848 P.2d
754 (1993), overruled on other grounds by State v. Calle. 125 Wash. 2d 769, 888 P.2d 155
(1995).
*° 123 Wash. 2d 51, 864 P.2d 1371 (1993), overruled in part on other grounds by State v.
Hughes. 154 Wash. 2d 118, 110 P.3d 192 (2005).
11 Smith, 123Wn.2dat57.
12 Smith. 123 Wash. 2d at 57-58.
13 See State v. Flake, 76 Wash. 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 Wash. 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 Wash. App. 707, 708, 90 P.3d 1092 (2004), review denied. 153
Wash. 2d 1013 (2005).
15 Parmelee. 121 Wash. App. at 708.
16 Parmelee, 121 Wash. 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 Wash. App. at 711 (emphasis added) (alterations in original) (footnote omitted).
18 State v. Larson. 56 Wash. 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 Wash. 2d 275, 289-90, 796 P.2d 1266 (1990).
20 See Handlev. 115 Wash. 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 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
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.
21 Parmelee, 121 Wash. 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 The Washington State Constitution affords criminal defendants "the right to appeal in
all cases." Wash. Const, art. I, sec. 22.
23 171 Wash. 2d 436, 447-49, 256 P.3d 285 (2011).
24 State v. Sims, 152 Wash. 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 Haw.
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 Wash. 2d 388, 392, 894 P.2d 1308 (1992) (quoting State v. Ross.
71 Wash. 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