FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON APRIL 9, 2026 IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON APRIL 9, 2026 SARAH R. PENDLETON SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter of the Personal Restraint of No. 103569-1
AKEEL BIN-BELLAH, EN BANC
Respondent. Filed: April 9, 2026
STEPHENS, C.J.—The State of Washington charged Akeel Bin-Bellah with
one count of first degree assault arising from a December 2017 incident in which he
beat and seriously injured his mother. In a negotiated plea agreement, Bin-Bellah
pleaded guilty to one count of second degree assault and three counts of fourth
degree assault in exchange for a substantially reduced sentence. As part of his plea
agreement, Bin-Bellah stipulated to several facts, including that each count of assault
constituted a separate and distinct act. Nonetheless, in this personal restraint petition
(PRP), he collaterally attacks his judgment and sentence on the grounds that his
multiple convictions for a single assault violate double jeopardy. Division One of
the Court of Appeals granted the PRP and vacated three of Bin-Bellah’s assault
convictions. We granted the State’s motion for discretionary review and now
reverse. In Re Pers. Restraint of Bin-Bellah, No. 103569-1
The central issue in this case is whether criminal defendants such as Bin-
Bellah can negotiate with the State and plead guilty to multiple, even fictitious, lesser
offenses when they determine it is in their best interests to do so. Bin-Bellah
contends that the underlying record of his assaultive conduct demonstrates that he
committed only one assault. He concludes that his judgment and sentence is
therefore invalid because it punished him four times for a single criminal act,
contrary to his constitutional rights under the double jeopardy clause. The State
counters that the multiplication of charges during plea bargaining is permissible
under our precedent so long as the plea is entered voluntarily and knowingly, and
the trial court finds a factual basis for the original charges. In the State’s view, Bin-
Bellah’s double jeopardy argument is foreclosed by his voluntary plea to one count
of second degree assault and three counts of fourth degree assault supported by
affirmative factual admissions.
We agree with the State. Consistent with established precedent, Bin-Bellah’s
plea to multiple assault charges was constitutionally permissible and his judgment
and sentence cannot now be collaterally attacked on double jeopardy grounds. We
reverse the Court of Appeals, reinstate his three fourth degree assault convictions,
and dismiss his PRP.
2 In Re Pers. Restraint of Bin-Bellah, No. 103569-1
FACTUAL BACKGROUND
On December 10, 2017, Bin-Bellah severely beat his mother, Darlene Maria
Slade, causing her substantial injuries, including extensive traumatic brain damage
that required hospitalization and continuing care. The State charged Bin-Bellah with
one count of first degree assault based on this incident. In a separate, earlier incident,
the State charged Bin-Bellah with second degree robbery for beating a convenience
store clerk and taking some items. Bin-Bellah and the State entered plea negotiations
encompassing both charges.
The State and Bin-Bellah reached a global, indivisible plea agreement to
resolve his assault and robbery charges. As relevant to this PRP, the State reduced
the charge for Bin-Bellah’s assault on his mother from one count of first degree
assault to four lesser counts: one count of second degree assault and three counts of
fourth degree assault. In addition, the State agreed to reduce the second degree
robbery charge to first degree theft and third degree assault and further
recommended to the trial court that these sentences run concurrently with the four
assault convictions.
In his felony plea to second degree assault, Bin-Bellah admitted to
“intentionally assault[ing] Darlene Maria Slade and thereby recklessly caus[ing]
serious bodily injury when [he] pushed her onto the ground and kicked her in the
head.” Br. of Pet’r, App. at 23 (Wash. Ct. App. No. 83711-7-I (2024)). In his
3 In Re Pers. Restraint of Bin-Bellah, No. 103569-1
nonfelony plea agreement to three counts of fourth degree assault, Bin-Bellah agreed
there was a “substantial likelihood of conviction on the original [first degree assault]
charge” and he was “pleading guilty to three counts of assault in the fourth degree .
. . to take advantage of a plea bargain offered by the prosecution.” Id. at 38. Bin-
Bellah acknowledged that there was no independent factual basis for the three counts
of fourth degree assault but stated that he was nonetheless “knowingly and
voluntarily pleading guilty” to these three additional counts as permitted by State
v. Bao Sheng Zhao, 157 Wn.2d 188, 137 P.3d 835 (2006), and In re Personal
Restraint of Barr, 102 Wn.2d 265, 684 P.2d 712 (1984). Br. of Pet’r, App. at 38
(Wash. Ct. App. No. 83711-7-I (2024)).
As part of his plea, Bin-Bellah stipulated that “all counts are separate and
distinct acts,” and he agreed that “any attempt to . . . appeal or collaterally attack any
conviction or agreed sentence under this cause number . . . [would] constitute a
breach of this agreement.” Id. at 25 (formatting omitted) (Wash. Ct. App. No.
83711-7-I (2024)). During his plea colloquy with the court, Bin-Bellah again
verbally acknowledged that “all counts are separate and distinct acts” and that his
plea was knowing and voluntary. Guilty Plea Hr’g at 11-12, 16.
The trial court accepted Bin-Bellah’s plea as knowing and voluntary,
sentencing him to a term of 7 years’ incarceration for the second degree assault
conviction and to three 364-day terms for each of the fourth degree assault
4 In Re Pers. Restraint of Bin-Bellah, No. 103569-1
misdemeanor convictions. The court determined that these sentences would be
served consecutively but concurrently with the unrelated robbery and assault
charges. The initial judgment and sentence was entered on December 20, 2019.
After the sentence was entered, the Department of Corrections objected to its
structure, noting a perceived error in the total months of confinement. The
sentencing court corrected the error and entered an amended judgment and sentence
on July 31, 2020.
The plea agreement and attendant sentencing structure benefited Bin-Bellah
substantially. Had he been convicted of the first degree assault as originally charged,
he faced a sentencing range of 20 to 36.5 years in prison because of his high offender
score. RCW 9.94A.510, .515, .525(21). The plea agreement, therefore, allowed
Bin-Bellah to avoid a sentence that “would have been double or triple” the sentence
he ultimately received after pleading guilty to the amended multiple charges. Suppl.
Br. of Pet’r at 5 (emphasis omitted).
On April 30, 2021, less than one year after entry of the amended judgment
and sentence, Bin-Bellah filed a CrR 7.8 motion in the trial court, seeking relief from
judgment on double jeopardy grounds. Bin-Bellah sought the vacatur of his three
fourth degree assault convictions but not the invalidation of the rest of his plea
agreement. The trial court transferred the motion to the Court of Appeals for
treatment as a PRP.
5 In Re Pers. Restraint of Bin-Bellah, No. 103569-1
Division One of the Court of Appeals granted the PRP on the ground that Bin-
Bellah’s three fourth degree assault convictions and sentences violated double
jeopardy because in this case “there was only one criminal act.” In re Pers. Restraint
of Bin-Bellah, No. 83711-7-I, slip op. at 4 (Wash. Ct. App. Sep. 30, 2024)
(unpublished), https://www.courts.wa.gov/opinions/pdf/837117.pdf. The court
vacated Bin-Bellah’s fourth degree assault convictions and remanded for
resentencing on the second degree assault conviction.
We granted the State’s motion for discretionary review and accepted an
amicus brief from the Washington Association of Prosecuting Attorneys (WAPA).
ANALYSIS
The protection against double jeopardy guaranteed by the Washington and
United States Constitutions provides that “[n]o person shall . . . be twice put in
jeopardy of life or limb.” U.S. CONST. amend. V; WASH. CONST. art. I, § 9. The
double jeopardy clause of the Washington State Constitution is concurrent with the
United States Constitution. State v. Gocken, 127 Wn.2d 95, 107, 896 P.2d 1267
(1995). The proper interpretation and application of the double jeopardy clause
presents a question of law we review de novo. In re Pers. Restraint of Francis, 170
Wn.2d 517, 523, 242 P.3d 866 (2010).
The prohibition against double jeopardy provides three different protections
for defendants, “one of which protects against multiple punishments for the same
6 In Re Pers. Restraint of Bin-Bellah, No. 103569-1
offense.” State v. Bobic, 140 Wn.2d 250, 260, 996 P.2d 610 (2000). Double jeopardy
is not implicated if a defendant receives separate punishments for different offenses.
State v. Ray, 5 Wn.3d 350, 362, 575 P.3d 321 (2025). Generally, a defendant waives
their double jeopardy rights by pleading guilty and there is no requirement that this
waiver be expressly communicated. United States v. Broce, 488 U.S. 563, 569, 109
S. Ct. 757, 102 L. Ed. 2d 927 (1989). Narrow exceptions to this general rule exist if
“on the face of the record the court had no power to enter the conviction or impose
the sentence.” Id. at 569-71 (holding that defendants could have challenged factual
questions by going to trial but “chose not to, and hence relinquished that
entitlement”).
This case turns on whether Bin-Bellah may collaterally attack his sentence on
double jeopardy grounds despite entering a knowing and voluntary plea containing
factual stipulations to separate and distinct acts.
We hold that Bin-Bellah’s unchallenged, knowing, and voluntary plea,
stipulating to four separate and distinct assaults for the purpose of sentencing
forecloses his double jeopardy claim. We therefore reverse the Court of Appeals
and dismiss Bin-Bellah’s PRP. We decline to decide whether Bin-Bellah violated
his plea agreement by collaterally attacking his sentence, nor do we address the
question of appropriate remedies when multiple convictions violate double jeopardy.
7 In Re Pers. Restraint of Bin-Bellah, No. 103569-1
Bin-Bellah’s Guilty Plea to Four “Separate and Distinct Acts” Forecloses
His Double Jeopardy Claim
Bin-Bellah does not dispute that he knowingly and voluntarily pleaded guilty
to four separate and distinct acts as the basis for his four assault convictions. He
seeks to retain the benefit of his bargain by enforcing the plea agreement while
simultaneously invalidating his three lesser charges as unconstitutional, arguing they
are fictitious in light of the probable cause statement supporting only the original
first degree assault charge. Corrected Suppl. Br. of Resp’t at 12 (asserting the
sentence unconstitutionally imposes multiple punishments for “only one possible
assault, if that”). His argument runs counter to Washington’s flexible approach to
plea bargaining. We begin by explaining the basis for that approach and its benefits.
A. Washington’s Flexible Approach to Plea Bargaining
Flexibility in the plea bargaining framework has been an essential part of our
criminal justice system since we endorsed it in Barr. 102 Wn.2d at 270; see also
Zhao, 157 Wn.2d at 200. The ability of both the State and the defendant to negotiate
an agreed resolution through plea bargaining on charges is a critical part of this
system. 13 ROYCE A. FERGUSON, JR., WASHINGTON PRACTICE: CRIMINAL PRACTICE
AND PROCEDURE § 3401, at 2 (3d ed. 2004) (“Plea negotiations are an important, if
not essential, part of the criminal justice system.”); Missouri v. Frye, 566 U.S. 134,
8 In Re Pers. Restraint of Bin-Bellah, No. 103569-1
143, 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012) (“[O]urs ‘is for the most part a system
of pleas, not a system of trials.’” (quoting Lafler v. Cooper, 566 U.S. 156, 170, 132
S. Ct. 1376, 182 L. Ed. 2d 398 (2012)). Plea bargaining helps defendants avoid
excessive pretrial confinement, provides certainty regarding their potential
punishments, and jump-starts the rehabilitation process. State v. Harris, 4 Wn.3d
108, 119, 559 P.3d 499 (2024). It also preserves public resources and provides
swifter closure for victims. Id. at 120.
We have long recognized that plea bargaining may include charge bargaining,
allowing a defendant to plead guilty to amended charges that have no factual basis
so long as the record demonstrates that the plea was voluntary and knowing, and
there was a factual basis for the originally charged crime. Zhao, 157 Wn.2d at 200;
Barr, 102 Wn.2d at 269-70. Zhao and Barr’s flexible approach provides numerous
benefits, the chief being that it enables the parties to arrive at a mutually agreeable
sentence, whereby the defendant may “choose to plead guilty to a related charge that
was not committed[] in order to avoid near certain conviction for a greater offense.”
Zhao, 157 Wn.2d at 200. At its core, our flexible approach empowers criminal
defendants to determine the course of action that is in their best interest. Barr, 102
Wn.2d at 270. A defendant may benefit in several ways—for instance, they may
avoid conviction on a strike offense or on an offense that creates negative
immigration consequences. See, e.g., WASH. DEF. ASS’N, USING BARR/ZHAO PLEAS
9 In Re Pers. Restraint of Bin-Bellah, No. 103569-1
TO MITIGATE IMMIGRATION CONSEQUENCES 1 (May 2021) (plea bargaining on
charges helps to “widen[] the pool of available immigration-safe plea alternatives”),
https://defensenet.org/wp-content/uploads/2022/06/WDAIP-Using-Barr-Zhao-
Pleas-to-Mitigate-Immigration-Consequences-June_2022.pdf
[https://perma.cc/FW9M-WFTZ].
Two protections are essential to this flexible pleading framework: first, the
amended charges may be fictitious only if the plea is knowing and voluntary, and
second, a factual basis for the original charge provides a sufficient “factual basis for
the plea as a whole.” Zhao, 157 Wn.2d at 200. Our approach accords with U.S.
Supreme Court precedent recognizing the boundaries on plea bargaining, while
preserving a defendant’s ability to negotiate if these essential prerequisites are met.
See North Carolina v. Alford, 400 U.S. 25, 36, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970)
(“[T]he Constitution does not bar imposition of a prison sentence upon an accused
who is unwilling expressly to admit his guilt but who, faced with grim alternatives,
is willing to waive his trial and accept the sentence.”). For a plea to be informed,
there must be a factual basis for the original charge, and the defendant must
understand the relationship of their conduct to that charge. Barr, 102 Wn.2d at 270.
Bin-Bellah pleaded guilty to three counts of fourth degree assault and one
count of second degree assault. These four counts stemmed from the initial charge
that Bin-Bellah committed first degree assault on his mother. His plea agreement 10 In Re Pers. Restraint of Bin-Bellah, No. 103569-1
includes a promise by Bin-Bellah not to collaterally attack any part of his conviction
as well as the stipulation that “all counts are separate and distinct acts.” Br. of Pet’r,
App. at 25, 42 (Wash. Ct. App. No. 83711-7-I (2024)) (italics in original) (boldface
and underlining omitted). Bin-Bellah does not challenge that his plea and
stipulations were voluntary and informed and so he raises what amounts to a factual
sufficiency challenge. The Court of Appeals focused on Bin-Bellah’s underlying
assaultive conduct after accepting his premise that as a matter of law, he cannot be
convicted of more than one assault. By accepting Bin-Bellah’s invitation to look
past his stipulation, the court decided that each count of assault did not have a
sufficiently independent factual basis. In doing so, the Court of Appeals ignored the
trial court’s finding that the plea was entered knowingly, voluntarily, and with the
requisite factual basis under Barr and Zhao. Guilty Plea Hr’g at 11-12, 25-26.
Division One’s resolution of Bin-Bellah’s case stands in tension with other
Court of Appeals decisions applying Barr and Zhao. Division Two has previously
permitted a defendant to plead guilty to two counts of third degree assault when only
one count of second degree assault was initially charged and there was a factual basis
for only one assault charge, rendering the additional, lesser charge duplicative. State
v. Tamau, noted at 150 Wn. App. 1030, 2009 WL 1526944, at *2 (2009) (“[Tamau]
chose to plead guilty in order to obtain the benefit he had bargained for.”). Division
Two has also allowed the State to dismiss 22 offenses in exchange for the defendant
11 In Re Pers. Restraint of Bin-Bellah, No. 103569-1
pleading guilty to one fictitious greater charge. State v. Wilson, 16 Wn. App. 2d
537, 545, 481 P.3d 614 (2021).
B. Bin-Bellah Improperly Engages in a Factual Sufficiency Analysis of the
Fourth Degree Assault Charges to Which He Pleaded Guilty
To anchor his challenge, Bin-Bellah argues that the legislature has prohibited
any attempt to divide one assault into several lesser assaults for plea bargaining
purposes. This argument is premised on the notion that the legislature has designated
assault as a course of conduct offense. Corrected Suppl. Br. of Resp’t at 10-11
(asserting that a plea to multiple charges would allow the prosecution to divide one
instance of criminal conduct “into smaller units than the legislature has designated”).
It relies on a misunderstanding of our decision in State v. Villanueva-Gonzalez, 180
Wn.2d 975, 329 P.3d 78 (2014).
Contrary to Bin-Bellah’s argument, our decision in Villanueva-Gonzalez does
not hold that a person charged with one act of assault is prohibited from agreeing to
separate and distinct acts as part of a plea deal. Rather than viewing the assault
statutes as requiring a single course of conduct analysis, we expressly left open the
possibility that multiple separate acts could constitute distinct assaultive acts for the
purpose of criminal prosecution. Id. at 985 (“There is no bright-line rule for when
multiple assaultive acts constitute one course of conduct.”). We endorsed a fact-
12 In Re Pers. Restraint of Bin-Bellah, No. 103569-1
intensive, multifactor analysis and emphasized that the ultimate determination in a
particular case “should depend on the totality of the circumstances, not a mechanical
balancing of the factors.” Id.
We recently reaffirmed and applied this principle in State v. Lee, holding that
“if each count arises from a separate and distinct act, multiple convictions may
stand” and affirming that in reviewing whether a defendant’s actions constitute a
single course of assaultive conduct, “[t]he ultimate determination depends on the
totality of the circumstances, not a mechanical balancing of the [Villanueva-
Gonzalez] factors.” 5 Wn.3d 734, 742, 746, 582 P.3d 271 (2026). In another recent
opinion, Ray, we reaffirmed that a challenge to multiple convictions arising from
different statutory provisions demands a distinct analysis under the double jeopardy
clause. 5 Wn.3d at 362.
Villanueva-Gonzalez does not prevent a defendant from stipulating to the
legal fiction that multiple individual acts occurred as part of a plea agreement.
Instead, it simply requires the court to examine the totality of the circumstances to
determine whether multiple assaults occurred in a particular case. Here, the
circumstances include Bin-Bellah’s knowing and voluntary decision to enter a guilty
plea to multiple charges, as well as his endorsement of the certificate of probable
cause, and his factual stipulation “that all counts are separate and distinct acts.” Br.
of Pet’r, App. at 25 (formatting omitted) (Wash. Ct. App. No. 83711-7-I (2024)). 13 In Re Pers. Restraint of Bin-Bellah, No. 103569-1
The trial court entered no factual finding that there was a single act of assault. Bin-
Bellah asks us to disregard his factual stipulation and enter our own factual findings
to dispute the facts agreed to in his plea. We decline to do so because this is the sort
of factual dispute that Bin-Bellah “chose not to [assert at trial], and hence
relinquished that entitlement.” Broce, 488 U.S. at 571; see also In re Pers. Restraint
of Schorr, 191 Wn.2d 315, 324, 422 P.3d 451 (2018) (affirming the principle that a
defendant who pleads guilty to separate charges with facial allegations of distinct
offenses cannot later reach beyond the record to argue those counts are duplicative).1
C. Bin-Bellah’s Factual Stipulations Are Substantive Admissions and Are
Entitled to Substantial Weight
Notwithstanding Bin-Bellah’s plea stipulating to separate and distinct acts
supporting multiple charges, the Court of Appeals accepted his invitation to examine
the probable cause statement and concluded that only one assaultive act occurred.
Bin-Bellah, No. 83711-7-I, slip op. at 7. In doing so, the Court of Appeals
improperly disregarded the factual stipulations in Bin-Bellah’s plea and instead
examined the underlying facts supporting the original first degree assault charge.
1 The State and amicus WAPA make a compelling argument that even if this court did accept Bin-Bellah’s argument that a plea can never divide one act of assaultive conduct into multiple counts of assault, the appropriate remedy would be recission of the plea agreement under the doctrine of mutual mistake. However, we need not reach the question of remedies as our holding in Villanueva-Gonzalez does not prohibit parties in a negotiated plea agreement from stipulating to multiple separate and distinct acts of assaultive conduct. Bin-Bellah did that here. 14 In Re Pers. Restraint of Bin-Bellah, No. 103569-1
From the conclusion that multiple acts were not factually supported, the court held
that Bin-Bellah’s conviction on multiple charges violated double jeopardy, and it
vacated the three fourth degree assault convictions. Id. at 7-8.
Urging us to affirm, Bin-Bellah argues that a double jeopardy violation is
apparent from the record and cannot be waived. He relies primarily on three cases,
all of which are distinguishable. First, Bin-Bellah cites the U.S. Supreme Court
decision in Broce to show that the purported double jeopardy violation in this case
is “apparent from the record” and thus, he has not waived it. Corrected Suppl. Br.
of Resp’t at 17. Second, he cites our decision in State v. Knight, 162 Wn.2d 806,
174 P.3d 1167 (2008), arguing that a mere guilty plea does not waive double
jeopardy protections if the terms of the agreement do not explicitly require such a
waiver. Finally, he relies on the Court of Appeals decision in State v. Robinson, 8
Wn. App. 2d 629, 439 P.3d 710 (2019), to conclude that a defendant can never plead
to, and be convicted of, two separate crimes based on one criminal act. None of
these cases support Bin-Bellah’s double jeopardy argument.
First, the facts of Broce are distinguishable, undermining Bin-Bellah’s reading
of the phrase “on the record.” In Broce, several defendants were charged with two
conspiracies related to a scheme to rig bids on highway projects. They subsequently
pleaded guilty to the two conspiracies and “acknowledged in plea agreements that
they were subject to separate sentences on each conspiracy charged.” Broce, 488 15 In Re Pers. Restraint of Bin-Bellah, No. 103569-1
U.S. at 565. Later, a court in a separate criminal case related to a third highway
project found that each of these three instances were in fact part of a single,
overarching conspiracy. Id. at 567. Based on this decision, the Broce defendants
sought to vacate their conspiracy sentences on double jeopardy grounds. Id. The
U.S. Supreme Court rejected their argument, concluding, “Just as a defendant who
pleads guilty to a single count admits guilt to the specified offense, so too does a
defendant who pleads guilty to two counts with facial allegations of distinct offenses
concede that he has committed two separate crimes.” Id. at 570. If defendants
believed otherwise, the Court reasoned, they had the opportunity to assert as much
in a “trial-type proceeding” but “chose not to, and hence relinquished that
entitlement.” Id at 571.
As Bin-Bellah points out, the Court did carve out an exception to the rule that
a plea generally “foreclose[s] . . . collateral attack” if, “on the face of the record[,]
the court had no power to enter the conviction or impose the sentence.” Id. at 569.
The Court cautioned, however, that a guilty plea is more than a mere statement that
the accused engaged in the specific acts described in an indictment, it is an admission
that the accused is “guilt[y] of a substantive crime.” Id. at 570. The Court
emphasized that guilty pleas and the stipulations contained within them carry more
than just descriptive weight. Rather, they are substantive factual and legal
admissions.
16 In Re Pers. Restraint of Bin-Bellah, No. 103569-1
Both Bin-Bellah and the Court of Appeals erroneously focus on Bin-Bellah’s
conduct leading up to his arrest, as set forth in the probable cause statement. In
doing so, they fail to give weight to Bin-Bellah’s factual admission that each count
to which he pleaded guilty was supported by separate and distinct acts. By
stipulating to these facts, Bin-Bellah waived his right to contest them, as knowing
and voluntary factual admissions inherent in a guilty plea cannot later be undermined
on appeal. See id. at 576 (noting that defendants “cannot prove their claim without
contradicting those indictments, and that opportunity is foreclosed by the admissions
inherent in their guilty pleas”). By arguing that his actions do in fact constitute one
act of assaultive conduct, Bin-Bellah engages in the very factual dispute that he
“chose not to [assert at trial], and hence relinquished that entitlement.” Id. at 571; cf.
Schorr, 191 Wn.2d at 325 (holding that a defendant “must plead guilty to all or
nothing”).
Much of Bin-Bellah’s reliance on Broce hinges on his argument that it is
apparent from the face of the record that he was punished four times for one
continuous course of assaultive conduct. He contends that his claims are confined
to the record, distinguishing his argument from that of the Broce defendants who
clearly reached outside the record for extraneous facts from another trial. However,
Broce does not require courts to disregard factual stipulations—they too are a part
of the record we must consider. Bin-Bellah’s argument relies on selectively
17 In Re Pers. Restraint of Bin-Bellah, No. 103569-1
excluding a critical component of the record in his case—his own admission to
separate and distinct acts supporting his plea.
Second, Bin-Bellah relies heavily on our decision in Knight, 162 Wn.2d 806.
Building on his Broce analysis, he argues that Knight holds that a guilty plea on its
own does not waive the constitutional protections of the double jeopardy clause so
long as the violation is apparent from the record. Bin Bellah asserts that “[m]erely
by pleading guilty, [he] did not waive double jeopardy protection.” Corrected Suppl.
Br. of Resp’t at 14. His statement of the law is correct, but his argument that it
applies to the circumstances of his plea agreement is unconvincing. His plea
expressly encompassed a factual stipulation to four counts premised on separate and
distinct acts. His case is therefore distinguishable from Knight for two key reasons.
First, in Knight, we accepted and did not examine the Court of Appeals’
double jeopardy finding and granted review only to determine the appropriate
remedy for a double jeopardy violation. Ord. Granting Rev., No. 79236-4 (Wash.
July 10, 2007). Our limited holding was that a single conviction can be vacated
without rejecting an entire indivisible plea agreement. Knight, 162 Wn.2d at 810-
12 (“[T]he Court of Appeals found a double jeopardy violation here, and the court
must provide a remedy. The proper remedy for double jeopardy violations,
including the one here, is vacating the offending convictions.”). Here, the procedural
posture is different: we do not assume a double jeopardy violation and, as noted 18 In Re Pers. Restraint of Bin-Bellah, No. 103569-1
above, we need not reach the question of remedies. Thus, Knight is not particularly
helpful here.
Second, the underlying facts in Knight are quite different. Alyssa Knight was
initially charged with two counts of conspiracy though there was, in fact, one
conspiracy. Id. at 811. As a result, there was no factual basis for one of the
conspiracy charges, rendering the original charges deficient. In contrast, here, the
trial court found a factual basis for Bin-Bellah’s original first degree assault charge.
This finding provided a sufficient factual basis for the plea agreement under which
Bin-Bellah voluntarily and knowingly agreed to dismissal of the original charge in
exchange for multiple lesser assault charges based on separate and distinct acts of
assault.
Finally, Bin-Bellah’s reliance on Division One’s opinion in Robinson is
unavailing because he fails to account for its procedural and factual dissimilarities.
In Bin-Bellah’s view, Robinson categorically holds that a defendant cannot be
convicted of two separate crimes based on one criminal act and one original charge.
However, in Robinson, the court was tasked with examining the validity of a
factually fictitious predicate conviction in a subsequent felony proceeding. 8 Wn.
App. 2d at 631 (“In a prosecution where predicate convictions are an essential
element of the crime, the State is required to prove the previous convictions are valid
and constitutional beyond a reasonable doubt.”). The procedural posture and 19 In Re Pers. Restraint of Bin-Bellah, No. 103569-1
associated burden on appeal are decidedly distinct in Bin-Bellah’s case, and we find
Robinson inapposite.
Given this procedural distinction, we need not examine the validity of
Division One’s substantive double jeopardy analysis to resolve the instant case. We
note, however, that unlike Bin-Bellah, the defendant in Robinson never provided
factual stipulations to separate and distinct acts. Id. at 638 (“It is undisputed that
Robinson’s two 2015 convictions for misdemeanor violation of a no-contact order
are based on one act.”). The court concluded, “When a person is charged with
multiple counts of the same offense, ‘each count must be based on a separate and
distinct criminal act.’” Id. (quoting State v. Mutch, 171 Wn.2d 646, 662, 254 P.3d
803 (2011)). Bin-Bellah’s plea met that requirement when he expressly stipulated
to separate and distinct criminal acts as part of his plea agreement. Barr, Zhao, and
Villanueva-Gonzalez permit him to do so, and we do not read Robinson as imposing
any additional impediment that is not satisfied here. Division One misapplied
Robinson to this case and erroneously concluded that Bin-Bellah was punished
multiple times for a single act. To the contrary, he received the sentence he
negotiated for, stipulating to multiple assaults in exchange for four lesser charges
and a shorter recommended prison sentence. Bin-Bellah’s factual stipulations and
the procedural posture render the holding in Robinson inapplicable here.
20 In Re Pers. Restraint of Bin-Bellah, No. 103569-1
As explained, Bin-Bellah’s plea to multiple lesser charges is authorized under
Barr and Zhao. Considering his factual stipulations and admissions of guilt, the plea
does not violate Bin-Bellah’s rights under the double jeopardy clause.
CONCLUSION
The flexible plea bargaining framework we recognized in Barr and Zhao
makes it possible for a defendant charged with a single assault to enter a plea to
multiple, lesser assaults based on separate and distinct conduct. They can do so if
the plea is voluntary and knowing, and there is a factual basis for the original charge.
Those conditions are met here, and we hold that Bin-Bellah cannot now challenge
his plea by pointing to facts in the probable cause statement that undermine the
bargain.
We reverse the Court of Appeals, reinstate Bin-Bellah’s three fourth degree
assault convictions, and dismiss his personal restraint petition.
21 In Re Pers. Restraint of Bin-Bellah, No. 103569-1
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WE CONCUR:
___________________________ ____________________________
____________________________ ____________________________
____________________________ ____________________________ Madsen, J.P.T.
____________________________ ____________________________ Yu, J.P.T.
22 In re Pers. Restraint of Bin-Bellah
No. 103569-1
GORDON McCLOUD, J. (concurring)—The majority’s summary of
our controlling precedent is accurate. We have held that a criminal defendant
can plead guilty to amended charges that lack a factual basis—in other
words, a criminal defendant can plead guilty to completely fictitious
charges. Majority at 9; State v. Bao Sheng Zhao, 157 Wn.2d 188, 200, 137
P.3d 835 (2006). We have held that the fictitious charges do not need to be
supported by the facts—and indeed the fictitious charges were not supported
by the facts alleged in this case. In re Pers. Restraint of Barr, 102 Wn.2d
265, 269-70, 684 P.2d 712 (1984). The United States Supreme Court has
held that a guilty plea waives certain double jeopardy challenges, and the
majority is probably correct that under that precedent, the double jeopardy
challenge in this case was waived. Majority at 15-17. The fact that Akeel
Bin-Bellah did not admit that he actually committed the made-up charges is
not a problem either: a defendant can plead guilty to take advantage of a plea
bargain even if the defendant asserts innocence. North Carolina v. Alford,
400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). In re Pers. Restraint of Bin-Bellah, No. 103569-1 (Gordon McCloud, J., concurring)
That’s exactly what happened in this case. The parties made up a story
about what happened. They formalized the story with a plea agreement
document. They recited the fiction on the record in open court. They did not
even pretend that the story was real. The defendant did not admit that he
actually committed the made-up crimes. The prosecutor did not provide facts
that would have supported the made-up crimes. Based on our controlling
precedent, the parties just made the crimes fit the punishment that was
appropriate for this tragic case.
And because it was all based on controlling precedent, I must concur.
I cannot, however, join the portion of the opinion that recites the
positive criminal justice values that this arrangement supposedly serves. The
majority lists those positive values as flexibility, criminal defendants’
autonomy, and protecting the integrity of a system based on plea bargaining.
Majority at 8-9. And I certainly acknowledge that ignoring reality makes
room for a lot of flexibility. But ignoring reality does not really serve the
value of criminal defendants’ autonomy, given the fact that the State wields
so much more power than the typical criminal defendant.
And ignoring reality certainly does not uphold the integrity of the
criminal justice system. In fact, the practices that promote the integrity of the
2 In re Pers. Restraint of Bin-Bellah, No. 103569-1 (Gordon McCloud, J., concurring)
criminal justice system are just the opposite: Transparency. See Press-Enter.
Co. v. Superior Court, 464 U.S. 501, 505-510, 104 S. Ct. 819, 78 L. Ed. 2d
629 (1984) (detailing the important value of keeping courtrooms open).
Openness. Id. Clarity. Johnson v. United States, 576 U.S. 591, 595-96, 135
S. Ct. 2551, 192 L. Ed. 2d 569 (2015) (importance of clarity in statutes
fixing sentences). Predictability. United States v. Booker, 543 U.S. 220, 255,
125 S. Ct. 738, 160 L. Ed. 2d 621 (2005) (noting importance of
predictability in sentencing laws).
Fictitious pleas based on made-up stories with no factual basis do not
promote any of these values. They lack transparency. They undermine open,
clear, and predictable outcomes in the criminal justice system. They might
well promote a just resolution in an individual case (like this one). But they
make the criminal court proceeding impossible for the observer to
understand, hard to track, and difficult to explain.
To be sure, parties pursue these made-up pleas to obtain a sentence
that they believe fits the real crime, given the full context of the situation—
and to ensure that the judge will impose that agreed-upon sentence. But there
are ways to achieve that goal without all the fictions. In federal court, for
example, a court rule provides that if the judge accepts a plea agreement
3 In re Pers. Restraint of Bin-Bellah, No. 103569-1 (Gordon McCloud, J., concurring)
containing an agreed sentence, then the judge must impose that agreed
sentence. E.g., Fed. R. Crim. P. 11(c)(1)(C).
For these reasons, I cannot agree with the majority’s view of the
criminal justice values that fictitious pleas, with no factual basis and in
which the defendant need not admit guilt, supposedly serve. I therefore
respectfully concur.
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