State v. Bell
| Decision Date | 14 October 2013 |
| Docket Number | No. 67910-4-I,67910-4-I |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. CLIFTON KELLY BELL, Appellant. |
AND SUBSTITUTING OPINION
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ORDERED that the opinion in the above-referenced case filed on July 29, 2013, be withdrawn, and a substitute opinion be filed in its place.
______________
v.
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.
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. 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
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 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,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 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 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 I both addressedthe court. Bell began by stating, 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 "[s]ometimes 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:
Bell appeals.
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
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 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 respectscannot 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:
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