                                                                                                         It ED
                                                                                                 L-02T OF APPEALS
                                                                                                     TVIIS11011z 1i

                                                                                               2 5I4 KKR 19
                                                                                                 ,            AM 8: 47

    IN THE COURT OF APPEALS OF THE STATE OF WASHIN-                                              d
                                              DIVISION II


In the Matter of the Personal Restraint                                     No. 43389 -3 -II
Petition of:




ALBERT JAMAAL YOUNGBLOOD,


                                                                      UNPUBLISHED OPINION


                                 Petitioner.


          WORSwICK, C. J. —    In this personal restraint petition, Albert Youngblood petitions this

court to vacate his two convictions for first degree kidnapping. Youngblood was convicted of

kidnapping and robbery; he now argues that the evidence was insufficient to support his

kidnapping convictions because his conduct was merely incidental to commission of the robbery.

Because Youngblood' s direct appeal determined the merits of his argument and he fails to show

that relitigating it would serve the interests of justice, we dismiss his petition.
                                                         FACTS


           Albert Youngblood, Samuel Ferguson, and John Fitzpatrick were convicted of four

                                            Shari'       Restaurant in Vancouver, Washington.'   At about
counts    arising from the robbery   of a            s




5: 00 AM, two men entered the restaurant wearing hats with eyeholes cut in them. At gunpoint




  Youngblood, Ferguson, and Fitzpatrick were tried jointly; however, Youngblood and Ferguson
 appealed separately. State v. Youngblood, noted at 162 Wn. App. 1008, 2011 WL 2120001,
 review    denied, 172 Wn. 2d 1020 ( 2011);     State v. Ferguson, 164 Wn. App. 370, 374, 264 P. 3d 575
 2011),    review   denied, 173 Wn.2d 1035 ( 2012). The facts here are taken from Youngblood' s
 appeal.
No. 43389 -3 -II



they forced two employees, Javier Rivera and Roberta Damewood, to move from the kitchen and

to lie on the floor in a storage room.

         Elsewhere in the restaurant, one of the men pointed a gun at another employee, Regina


Bridges, and demanded that she open the cash register. Bridges complied, the man took money

from the cash register, and both men left. Bridges then called 911 to report the robbery. Police

officers later chased and apprehended Youngblood, Ferguson, and Fitzpatrick.

         The State                             Youngblood, Ferguson,               Fitzpatrick   with   four   counts: (   1)
                        jointly      charged                                 and




first degree robbery         of   Bridges, ( 2) first degree     kidnapping   of Damewood,        ( 3) first degree


kidnapping of Rivera, and ( 4) attempting to elude a pursuing police vehicle. After two jury

trials, the trial court entered convictions on all four counts. Youngblood appealed to this court,


arguing inter alia that the evidence was insufficient to support his convictions for kidnapping.

         Youngblood based his sufficiency of the evidence argument on the incidental restraint

doctrine      applied   by   this   court   in State   v.   Korum, 120 Wn.   App.   686, 86 P. 3d 166 ( 2004), rev' d in


part on other grounds,              157 Wn. 2d 614 ( 2006).       Although this court recently reaffirmed Korum in

State v. Berg, 177 Wn. App. 119, 131, 310 P. 3d 866 ( 2013)-; cross petitions for review setfor en


Banc    conference,     No. 895708 ( Wash. Mar. 5, 2014), Divisions One and Three have declined to


follow Korum or apply the incidental restraint doctrine. State v. Grant, 172 Wn. App. 496, 498,

301 P. 3d 459 ( 2012),         review       denied, 177 Wn.2d 1021 ( 2013);        State v. Butler, 165 Wn. App. 820,

830 -31, 269 P. 3d 315 ( 2012).

             Before Divisions One and Three of this court declined to follow Korum, this court

transferred Youngblood' s appeal to Division One to expedite review. Order Transferring Cases,

State   v.   Youngblood, No. 39721 -8 - II ( Wash. Ct.            App.   Feb. 18, 2011), at 1, 6; see RCW 2. 06. 040;




                                                                  2
No. 43389 -3 -II



CAR 21(    a).   Division One affirmed Youngblood' s convictions in an unpublished opinion. State


v.   Youngblood,   noted at   162 Wn.   App.   1008, 2011 WL 2120001,          at *   1, review denied, 172


Wn.2d, 1020 ( 2011).


         While recognizing that Youngblood argued that " insufficient evidence exists to sustain

the kidnapping convictions" under Korum, Division One disposed of the argument by holding

that " Youngblood' s convictions for first degree kidnapping and first degree robbery do not

merge."      Youngblood, 2011 WL 2120001,         at *   3, *   4. In a footnote, Division One also rejected

Youngblood' s argument because the kidnappings and robbery had different victims, citing State

v.   Hadovic, 99 Wn.2d 413, 424, 662 P. 2d 853 ( 1983).              Youngblood, 2011 WL 2120001, at * 4


n.5.


          Youngblood petitioned for review in our Supreme Court, which denied review.

Youngblood, noted at 172 Wn.2d 1020. This personal restraint petition followed.

                                                  ANALYSIS


          Youngblood argues that his right to due process was violated because the evidence was

insufficient to -
                convict him of two counts of first degree kidnapping. Youngblood cannot renew

his argument in this personal restraint petition and, accordingly, we dismiss his petition.

          A personal restraint petition will be granted only if the petitioner is under an unlawful

restraint.   RAP 16. 4( a);   In re Pers. Restraint of Yates, 177 Wn.2d 1, 16, 296 P. 3d 872 ( 2013).

But a personal restraint petition is not a substitute for a direct appeal. In re Pers. Restraint of

Hagler, 97 Wn.2d 818, 824, 650 P. 2d 1103 ( 1982). There are limits on the use of a personal


restraint petition to collaterally attack a conviction. Hagler, 97 Wn.2d at 824.




                                                            3
No. 43389 -3 - II



        As a threshold issue, the State argues that Youngblood may not renew his sufficiency of

the evidence argument because it was resolved in his direct appeal. We agree.

        A personal restraint petition cannot renew an issue that was raised and rejected on direct

appeal unless the interests ofjustice require relitigation of the issue. In re Pers. Restraint of

Davis, 152 Wn.2d 647, 671, 101 P. 3d 1 ( 2004). An issue was raised and rejected on direct


appeal if the direct appeal determined the issue' s merits adversely to the petitioner. Davis, 152

Wn.2d at 671 n.14 ( citing In re Pers. Restraint of Taylor, 105 Wn.2d 683, 687, 717 P.2d 755

 1986)).


A.          Youngblood' s Direct Appeal Was Rejected on the Merits

           Youngblood concedes that his petition advances " one of the same arguments that he

asserted    in his direct   appeal,"   but he claims that Division One' s opinion failed to determine the

merits of this argument. Pet. at 7. Thus, Youngblood appears to assert that he is entitled to

renew the argument in his personal restraint petition. We disagree.

           In support of his claim that Division One failed to determine the merits of his argument,

 Youngblood asserts that Division One based its decision on merger principles and ignored his

 sufficiency of the evidence argument. We disagree.

           In its entirety, Division One' s consideration of Youngblood' s argument was as follows:

           Sufficiency of the EvidenceMerger
                     Youngblood first         argues    that "   the first degree kidnapping counts were
           incidental to the robbery and no separate conviction may . be imposed and
           enforced."       Appellant' s Br.      at    17.      He therefore maintains that because the
           kidnappings were done solely to facilitate the robbery and were not independent
           crimes, insufficient evidence exists to sustain the kidnapping convictions.
                     Youngblood relies on State v. Korum, 120 Wn. App. 686, 86 P. 3d 166
            2004).   There, the State charged the defendant with several kidnapping charges
           stemming from a conspiracy to rob drug dealers in a series of home invasions.
           Korum, 120 Wn.        App.    at   689.     The perpetrators restrained the victims with duct



                                                                  11
No. 43389 -3 - II



        tape while searching the homes and stealing drugs, money, and other valuables.
        Korum, 120 Wn.           App.    at   690 -92.           The court determined that this restraint of the
        victims     did   not constitute separate                kidnappings. "[      W] e hold as a matter of law
        that the kidnappings here             were        incidental to the   robberies.... ".         Korum, 120 Wn.

        App. at 707 ( footnote omitted).
                   But in State    v.   Louis, 155 Wn.2d 563, 571, 120 P. 3d 936 ( 2005), the court
        held that first degree kidnapping, even when incidental to a first degree robbery,
        does   not merge        with a    robbery           conviction.     In Louis, while robbing a jewelry
        store, the defendant bound the two owners' hands and feet, covered their eyes and
        mouths with duct tape, and forced them into a bathroom. The jury convicted him
        of one count of first degree kidnapping and one count of first degree robbery for
        each victim.

              On appeal, Louis argued that his convictions for kidnapping and robbery
        merged because the kidnappings were simultaneous and incidental to the robbery.
        The court determined the crimes do not merge because proof of one is not
        necessary to prove the other. It reasoned that proof of kidnapping is not necessary
        to prove first degree robbery, and proof of first degree kidnapping requires only
        the intent to commit robbery, not the completion of robbery. Louis, 155 Wn.2d at
        571.        Because Louis             controls,          Youngblood' s. convictions              for first degree
                                                                                  5
        kidnapping        and   first degree robbery do              not merge.




        5 Furthermore, the victims of the kidnappings in this case were different from the
        victim of    the robbery.        Under similar facts, the court rejected this same argument
        in State    v.   Hadovic, 99 Wn.2d 413, 424, 662 P. 2d 853 ( 1983).       We likewise reject
        it here.


Youngblood, 2011 WL 2120001,                  at *    3 - 4 & n. 5 ( alteration in original).


        Although Division One' s analysis largely relied on merger principles found in Louis, its

footnote rejected Youngblood' s argument on sufficiency of the evidence grounds by citing

 Hadovic, 99 Wn.2d         at   424. Youngblood, 2011 WL 2120001,                       at *   4&   n. 5.   In Vladovic, our


 Supreme Court rejected an appeal of kidnapping convictions on both merger and sufficiency of

the evidence grounds. 99 Wn.2d at 418 -22, 424. It is clear from the page cited in the

 Youngblood footnote that Division One applied Hadovic' s sufficiency of the evidence holding.

 Youngblood, 2011 WL 2120001,                  at *   4   n. 5   ( citing Hadovic, 99 Wn.2d         at   424). Thus Division


 One determined the merits of Youngblood' s sufficiency of the evidence argument.




                                                                      5
No. 43389- 3- 11


B.         The Interests ofJustice Do Not Require Relitigation

           Because Division One rejected Youngblood' s sufficiency of the evidence argument on

the merits, his personal restraint petition cannot renew the argument unless relitigation of the


issue   would serve    the interests    of justice.       See Davis, 152 Wn.2d          at   671. We hold that the


interests of justice do not require relitigation in this case.


           The petitioner bears the burden of showing that relitigation of an issue would serve the

interests   of justice.    Taylor, 105 Wn.2d         at   689. Although this test "`         cannot be too finely

particularized, "'    the interests of justice may be served by relitigating a purely legal question

when there has been an intervening change in the law or the petitioner has some justification for

failing to raise a crucial point in the direct appeal. Taylor, 105 Wn.2d at 688 -89 ( quoting
Sanders v. United States, 373 U.S. 1, 16 -17, 83 S. Ct. 1068, 10 L. Ed. 2d 148 ( 1963)).

           Youngblood claims that the interests of justice would be served by allowing him to

relitigate his argument in a court applying " clearly established Division [Two] case law,"

namely, this court' s decisions in Korum, 120 Wn. App. 686, and In re Pers. Restraint ofBybee,
 142 Wn.     App.   260, 175 P. 3d 589 ( 2007)            Pet. at 7      We disagree.


           The Court      of   Appeals is   one court     having three       divisions.'     RCW 2. 06. 010, . 020. This


state' s   lower   courts must give effect      to   mandates        issued   by   the Court   of   Appeals. Thompson v.


Lennox, 151 Wn.        App.      479, 490, 212 P. 3d 597 ( 2009) ( citing            Ethredge v. Diamond Drill

 Contracting Co.,      200 Wash. 273, 276, 93 P. 2d 324 ( 1939)); see RAP 12. 2. In turn, the Court of


 2
     The Washington Constitution vests judicial power in " a supreme court" and " a court of
                                                                    CONST. art. IV, §§ 1, 30; accord
         using the singular noun to refer to one court. WASH.
 appeals,"

 RCW 2. 06. 010 ( establishing " a court of appeals "). In contrast, the Washington Constitution also

 vests judicial power in plural " superior courts, justices of the peace, and such inferior courts as
 the legislature may       provide."    WASH. CONST.          art.     IV, § 1.




                                                                 rai
No. 43389 -3 -II



Appeals is bound to apply Washington law as interpreted by the Washington Supreme Court.

State   v.   Gore, 101 Wn.2d 481, 487, 681 P. 2d 227 ( 1984).               There is no such thing as " Division

Two     case    law," separate from Court of Appeals case law; instead, Washington law controls in


every division       of   the Court   of   Appeals. 3    See Gore, 101 Wn.2d at 487.

             Here, Youngblood exercised his constitutional right as a criminal defendant to appeal his

conviction.        See WASH. CONST.          art.   I, § 22. But Youngblood fails to show that the interests of


justice would be served if his appeal were considered by the division or the three judge panel

most receptive to his arguments.


             Additionally, the interests of justice do not require relitigation because Youngblood' s

sufficiency of the evidence argument would not succeed on its merits. To resolve a procedural

question raised in a postconviction personal restraint petition, it may be necessary.to " peek at the

merits" of the petitioner' s argument. See Phillips v. Seiter, 173 F. 3d 609, 610 ( 7th Cir. 1999)

 considering whether, in the interests of justice, a habeas petition should be dismissed or merely
transferred to the        appropriate court).        Because the procedural question presented here turns on


the interests ofjustice, a peek at the merits is appropriate:

             Youngblood' s argument would fail on its merits despite this court' s decision in Korum.

Youngblood argues that the evidence was insufficient to convict him of kidnapping because the

kidnappings were merely incidental to the robbery. But Youngblood was convicted of

kidnapping Rivera and Damewood; in contrast, the victim of the robbery was a different person,

Bridges. Youngblood, 2011 WL 2120001,                      at *   1 n.2. As a matter of law, a kidnapping is not

 3
     Anticipating situations in which " there is a direct conflict among prevailing decisions of panels
 of   the    court [ of appeals],"    our legislature has provided for our Supreme Court to resolve such
 conflicts. RCW 2. 06. 030( e).




                                                                   7
No. 43389 -3 - II



merely incidental to a robbery when the kidnapping and the robbery have different victims. See

Hadovic, 99 Wn.2d at 424; Korum, 120 Wn. App. at' 704 n. 14. Accordingly, Youngblood' s

argument would fail on the merits.


        Youngblood fails to carry his burden to show that the interests of justice would be served

by relitigation of his sufficiency of the evidence argument. See Taylor, 105 Wn.2d at 689.
Therefore he   cannot renew     the argument   now.   See Davis, 152 Wn.2d   at   671.   Because there are


no other grounds on which to conclude that Youngblood is unlawfully restrained, we dismiss his

personal restraint petition. See Yates, 177 Wn.2d at 16.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




                                                                       Worswick, C. J.
