Knowing and Voluntary Barr/Zhao Pleas Stipulating “Separate and Distinct Acts” Bar Collateral Double-Jeopardy Attacks

1. Introduction

In re Pers. Restraint of Bin-Bellah (Wash. Apr. 9, 2026) addresses a recurring tension in plea bargaining: Washington’s long-accepted practice permitting defendants to plead to amended (even “fictitious”) charges to obtain a bargained-for sentencing outcome, versus the constitutional protection against multiple punishments for the same offense under the double jeopardy clauses of the United States and Washington Constitutions.

Parties. The State charged Akeel Bin-Bellah with one count of first degree assault for a brutal 2017 assault on his mother. In a global plea covering this case and an unrelated robbery, Bin-Bellah pleaded guilty to one count of second degree assault and three counts of fourth degree assault. Critically, he stipulated that “all counts are separate and distinct acts,” and he expressly invoked Washington’s Barr/Zhao framework acknowledging that the three fourth degree assault counts had no independent factual basis but were accepted as part of the bargain.

Procedural posture. After sentencing, Bin-Bellah sought collateral relief (via a CrR 7.8 motion transferred as a PRP), arguing his multiple assault convictions punished him four times for one assaultive episode. Division One granted the PRP and vacated the three misdemeanors. The Washington Supreme Court granted discretionary review and reversed.

Key issue. Whether a defendant who entered a knowing and voluntary plea—supported by a factual basis for the original charge and containing a stipulation that the counts are “separate and distinct acts”—may later collaterally attack the resulting multiple convictions as violating double jeopardy based on the underlying probable cause narrative.

2. Summary of the Opinion

The court held that Bin-Bellah’s unchallenged, knowing, and voluntary guilty plea, combined with his factual stipulation that the assault counts were “separate and distinct acts,” forecloses a collateral double jeopardy challenge. Washington’s flexible plea-bargaining doctrine permits pleading to amended charges that lack an independent factual basis so long as (1) the plea is knowing and voluntary and (2) there is a factual basis for the original charge, which supplies the factual basis for the plea “as a whole.”

The court reversed the Court of Appeals, reinstated the three fourth degree assault convictions, and dismissed the PRP. It expressly declined to decide (a) whether Bin-Bellah breached his plea agreement by collaterally attacking the convictions and (b) the remedy question that would apply if a double jeopardy violation were established.

3. Analysis

3.1. Precedents Cited

A. Washington’s “flexible” factual-basis rule for charge bargaining

  • In re Personal Restraint of Barr, 102 Wn.2d 265, 684 P.2d 712 (1984)
    Role in this opinion: The doctrinal foundation. Barr endorsed charge bargaining that allows pleading to amended charges without an independent factual basis, provided the plea is knowing and voluntary and the original charge had a factual basis. The Bin-Bellah majority treats this as settled law central to Washington’s plea system.
  • State v. Bao Sheng Zhao, 157 Wn.2d 188, 137 P.3d 835 (2006)
    Role in this opinion: Reaffirmed and operationalized Barr. The court quotes Zhao for the proposition that the factual basis for the original charge is sufficient for “the plea as a whole” and emphasizes the autonomy- and efficiency-based rationale for allowing defendants to accept “grim alternatives” through negotiated pleas.

B. Double jeopardy framework and waiver by guilty plea

  • State v. Gocken, 127 Wn.2d 95, 896 P.2d 1267 (1995)
    Role: Confirms Washington’s double jeopardy clause is concurrent with the federal clause, grounding the court’s parallel reliance on federal authority.
  • In re Pers. Restraint of Francis, 170 Wn.2d 517, 242 P.3d 866 (2010)
    Role: Standard of review (de novo) for double jeopardy questions in collateral proceedings.
  • State v. Bobic, 140 Wn.2d 250, 996 P.2d 610 (2000)
    Role: Identifies the “multiple punishments” strand of double jeopardy protection—the strand invoked by Bin-Bellah.
  • State v. Ray, 5 Wn.3d 350, 575 P.3d 321 (2025)
    Role: Reinforces that double jeopardy is not implicated by separate punishments for different offenses and notes distinct analytic pathways depending on whether multiple convictions arise from the same or different statutes.
  • United States v. Broce, 488 U.S. 563, 109 S. Ct. 757, 102 L. Ed. 2d 927 (1989)
    Role: The centerpiece waiver authority. The court relies on Broce for three linked propositions: (1) a guilty plea generally waives double jeopardy claims; (2) narrow exceptions exist only when, “on the face of the record,” the court lacked power to convict/sentence; and (3) pleas are substantive admissions to separate crimes when the defendant pleads to separate counts with facially distinct allegations—meaning a later challenge often requires contradicting the admissions inherent in the plea.
  • In re Pers. Restraint of Schorr, 191 Wn.2d 315, 422 P.3d 451 (2018)
    Role: Washington analogue to Broce: a defendant who pleads guilty to separate charges with facial allegations of distinct offenses cannot later reach beyond the record to claim duplicative convictions.

C. Multiple-assault “unit of prosecution” and course-of-conduct analysis

  • State v. Villanueva-Gonzalez, 180 Wn.2d 975, 329 P.3d 78 (2014)
    Role: The defendant’s main “assault is a course of conduct” anchor. The court rejects his reading, emphasizing that Villanueva-Gonzalez expressly left open that multiple assaultive acts may constitute distinct assaults and announced no bright-line rule—requiring a totality-of-circumstances approach.
  • State v. Lee, 5 Wn.3d 734, 582 P.3d 271 (2026)
    Role: A fresh reaffirmation that multiple convictions may stand if each arises from a “separate and distinct act,” and that the Villanueva-Gonzalez inquiry is totality-based, not mechanical.

D. Court of Appeals cases illustrating application (and misapplication) of the flexible plea doctrine

  • State v. Tamau, noted at 150 Wn. App. 1030, 2009 WL 1526944 (2009)
    Role: Demonstrates that Washington appellate courts have permitted pleas to duplicative lesser charges (two third degree assaults) when only one assault was initially charged, because the defendant chose the bargain.
  • State v. Wilson, 16 Wn. App. 2d 537, 481 P.3d 614 (2021)
    Role: Illustrates the breadth of charge bargaining in practice, including pleading to a fictitious greater charge in exchange for dismissal of numerous offenses.
  • State v. Robinson, 8 Wn. App. 2d 629, 439 P.3d 710 (2019)
    Role: Distinguished. The Supreme Court explains Robinson involved proving the validity of predicate convictions in a subsequent prosecution and included an undisputed single act, without a stipulation to separate acts. It therefore does not control a PRP attacking a conviction entered on a knowing and voluntary plea with “separate and distinct acts” admissions.
  • State v. Mutch, 171 Wn.2d 646, 254 P.3d 803 (2011)
    Role: Quoted via Robinson for the general rule that multiple counts require separate and distinct criminal acts—then used by the majority to conclude Bin-Bellah satisfied that requirement by stipulation.

E. Remedy/charging-defect references

  • State v. Knight, 162 Wn.2d 806, 174 P.3d 1167 (2008)
    Role: Distinguished. The court notes Knight assumed a double jeopardy violation and addressed remedy; it also involved an original charging problem (no factual basis for one conspiracy). By contrast, Bin-Bellah had a factual basis for the original first degree assault and the Supreme Court did not accept that a double jeopardy violation existed.

F. Plea bargaining’s systemic role and constitutional boundaries

  • Missouri v. Frye, 566 U.S. 134, 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012) and Lafler v. Cooper, 566 U.S. 156, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012)
    Role: Cited for the reality that modern criminal justice is largely “a system of pleas,” supporting the majority’s institutional emphasis on preserving workable plea mechanisms.
  • North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970)
    Role: Reinforces that the Constitution does not bar a plea entered to avoid harsher alternatives even without an express admission of guilt—supporting Washington’s tolerance of negotiated pleas untethered from full factual admissions to each amended count.

G. Concurrence authorities critiquing “fictitious pleas”

  • Press-Enter. Co. v. Superior Court, 464 U.S. 501, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984), Johnson v. United States, 576 U.S. 591, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015), and United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005)
    Role: These citations appear in Gordon McCloud, J.’s concurrence to argue that the values that support legitimacy—transparency, openness, clarity, and predictability—are undermined by made-up factual narratives in plea proceedings.

3.2. Legal Reasoning

A. The court reframes the “record” and rejects selective reliance on probable cause

The Court of Appeals treated the probable cause statement as the decisive “record” for assessing whether only one assault occurred. The Supreme Court rejects that approach as incomplete because the “record” also includes the defendant’s plea admissions— especially the stipulation that the counts are “separate and distinct acts.” Under United States v. Broce, a guilty plea is not merely agreement with a narrative; it is an admission of guilt to the substantive crimes charged, and collateral attacks cannot proceed by contradicting those admissions.

B. The decision ties waiver to the specific plea architecture used here: a Barr/Zhao plea plus an express “separate acts” stipulation

The opinion does not rest solely on a generic “guilty plea waives double jeopardy” rule. It relies on the type of plea: a Washington-approved In re Personal Restraint of Barr/State v. Bao Sheng Zhao arrangement in which fictitious amended charges are permissible if the plea is knowing/voluntary and the original charge has a factual basis. Those conditions were found by the trial court and left unchallenged. This matters because Bin-Bellah’s PRP was, in substance, a factual sufficiency challenge to the amended counts—precisely what Broce and In re Pers. Restraint of Schorr prevent once the defendant has admitted separateness of the crimes.

C. Villanueva-Gonzalez is treated as compatible with bargaining over “separate acts,” not a legislative bar

Bin-Bellah’s statutory-structure argument depended on reading State v. Villanueva-Gonzalez as effectively limiting assault to a single course of conduct. The court responds on doctrinal terms: Villanueva-Gonzalez explicitly rejects a bright-line rule and allows multiple assaults depending on the totality of circumstances. The majority then treats the plea stipulation itself as part of those circumstances and refuses to redo the fact-intensive assault-unit analysis in a PRP where the defendant knowingly surrendered that dispute.

D. Distinguishing Knight and Robinson narrows the space for post-plea double jeopardy challenges

The court declines to extend State v. Knight beyond its posture (remedy after an assumed violation) and distinguishes its charging defect. It also confines State v. Robinson to its predicate-conviction validity setting and highlights the absence of a “separate acts” stipulation there. In effect, the majority’s method is to preserve a narrow “nonwaivable” category (the Broce exception) while emphasizing that, where a plea contains express admissions of separateness, the exception will rarely apply.

E. The concurrence: agreement on doctrine, disagreement on legitimacy and values

Gordon McCloud, J. concurs because existing precedent (especially State v. Bao Sheng Zhao and In re Personal Restraint of Barr) controls and because North Carolina v. Alford supports pleas entered for bargaining advantage without full factual admissions. But the concurrence rejects the majority’s normative defense of fictitious pleas, arguing that “made-up stories” undermine transparency and public comprehensibility, and pointing to federal practice (Fed. R. Crim. P. 11(c)(1)(C)) as an alternative mechanism to secure agreed sentencing outcomes without factual fictions.

3.3. Impact

A. Strengthening finality of Barr/Zhao pleas against double jeopardy PRPs

The most immediate effect is to make collateral double jeopardy relief substantially harder when the plea includes (i) an unchallenged knowing/voluntary finding, (ii) a factual basis for the original charge, and (iii) a stipulation that counts are based on “separate and distinct acts.” PRP petitioners will face a reinforced waiver barrier: courts are directed to treat plea stipulations as substantive admissions, not as optional glosses that can be disregarded in favor of probable cause narratives.

B. Incentivizing careful plea drafting and colloquies

Prosecutors and defense counsel are incentivized to build a “waiver-resilient” record by explicitly incorporating: (1) Barr/Zhao acknowledgments about factual basis structure, and (2) express “separate and distinct acts” stipulations when multiple counts are contemplated. Trial courts, in turn, may more consistently confirm on the record that the defendant understands the legal fiction being adopted and the consequences for later challenges.

C. Doctrinal tension: legitimacy concerns remain live

The concurrence signals an unresolved institutional debate: even if fictitious pleas are constitutional and efficient, they may erode the perceived integrity of adjudication. That critique may spur future litigation or rulemaking proposals aimed at (i) increasing transparency about the true conduct being sentenced, or (ii) expanding sentencing-agreement tools that avoid multiplying factually unsupported counts.

D. Limited reach: the court avoids remedy and breach questions

By declining to address remedies for actual double jeopardy violations and declining to decide whether a collateral attack breaches the plea, the court leaves important downstream issues unsettled—particularly what happens when a violation is established despite a plea, and whether the State may seek rescission or other contract-based relief.

4. Complex Concepts Simplified

Personal Restraint Petition (PRP)
Washington’s main collateral review mechanism (similar to habeas). It allows a confined person to challenge a judgment after it becomes final.
Double jeopardy (multiple punishments)
The constitutional bar against imposing more than one punishment for the “same offense.” It does not bar separate punishments for separate crimes.
“Unit of prosecution” / “course of conduct”
A way of asking: how many crimes did the legislature define here—one continuous offense, or one offense per distinct act? For assaults, State v. Villanueva-Gonzalez rejects a bright-line rule and uses a totality-of-the-circumstances test.
Barr/Zhao plea (factual-basis flexibility)
A Washington plea practice allowing a defendant to plead to amended charges lacking their own factual basis, so long as the original charge has a factual basis and the defendant knowingly and voluntarily accepts the bargain.
Waiver by guilty plea
Under United States v. Broce, a guilty plea generally forfeits later double jeopardy challenges unless the court’s lack of power is apparent “on the face of the record.” This opinion emphasizes that plea stipulations are part of that “record.”

5. Conclusion

In re Pers. Restraint of Bin-Bellah reinforces Washington’s flexible plea-bargaining regime: a defendant may plead to multiple amended assault counts—including counts lacking independent factual bases—when the plea is knowing and voluntary and the original charge is factually supported. Where the defendant stipulates that the counts are “separate and distinct acts,” that admission is treated as a substantive component of the record and will generally bar a later collateral double jeopardy attack premised on re-reading the probable cause statement as describing only a single assault.

The concurrence underscores a policy fault line: the doctrine may be stable, but the legitimacy costs of “fictitious pleas” remain contested—an issue more likely to be resolved through rulemaking or legislative reform than through further application of the existing Barr/Zhao framework.