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### 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 ofthe Personal Restraint Petition of:
ALBERT JAMAAL YOUNGBLOOD,

Petitioner. No. 43389 - 3 -II

UNPUBLISHED OPINION

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 nowargues thatthe evidence was insufficientto supporthis kidnapping convictions because his conductwas merely incidental to commission ofthe robbery. Because Youngblood' s direct appeal determined the merits ofhis argument and he fails to show 

### that relitigating itwould servethe interests ofjustice,we dismiss his petition. FACTS 

### Albert Youngblood, Samuel Ferguson, and John Fitzpatrickwere convicted offour

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

### 5: 00 AM,two men entered the restaurant wearing hats with eyeholes cut in them. At gunpoint Youngblood, Ferguson, and Fitzpatrickwere triedjointly; 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 

### theyforced 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 ofthe 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

### jointly charged Youngblood, Ferguson, and Fitzpatrick with four counts: ( 1) first degree robbery of Bridges, (2) first degree kidnapping of Damewood, (3) first degree 

### kidnapping ofRivera, and (4) attempting to elude apursuing police vehicle. After twojury trials, the trial court entered convictions on all four counts. Youngblood appealed to this court, 

### arguing inter aliathatthe evidence was insufficientto support his convictions for kidnapping. Youngblood based his sufficiency ofthe 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 petitionsfor review set for en Banc conference, No. 895708 (Wash. Mar. 5, 2014), Divisions One and Three have declined to 

### follow Korum or applythe 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 ofthis 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;

2No. 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 ofthe 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 insufficientto -

convict him oftwo counts offirst 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 ifthe petitioner is under an unlawful
restraint. RAP 16. 4( a); 

### In re Pers. Restraint ofYates, 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.

3No. 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 ofthe 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 ifthe direct appeal determined the issue' s merits adversely to the petitioner. Davis, 152 

### Wn.2d at 671 n.14 (citing In re Pers. Restraint ofTaylor, 105 Wn.2d 683, 687, 717 P.2d 755 1986)). A. Youngblood's DirectAppeal Was Rejected on the Merits 

### Youngblood concedes that his petition advances " one ofthe same arguments that he
asserted in his direct appeal," 

### but he claims that Division One' s opinion failed to determine the 

### merits ofthis argument. Pet. at 7. Thus, Youngblood appearsto assertthat he is entitledto renew the argument in his personal restraint petition. We disagree. 

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

### Youngblood asserts thatDivision One based its decision on merger principles and ignored his 

### sufficiency ofthe evidence argument. We disagree. 

## In its entirety, Division One' s consideration ofYoungblood's argument was as follows: Sufficiency ofthe 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
11No. 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. Thejury convicted him 

### of one count offirst 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 

### necessaryto prove the other. It reasoned that proofofkidnapping is not necessary to prove first degree robbery, and proof of first degree kidnapping requires only 

### the intentto commit robbery, not the completion ofrobbery. Louis, 155 Wn.2d at 571. Because Louis controls, Youngblood' s. convictions for first degree kidnapping and first degree robbery do not merge. 5 

### 5 Furthermore, the victims ofthe 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 ofthe 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 ofkidnapping 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 ofthe evidence holding. Youngblood, 2011 WL 2120001, at * 4 n.5 ( citing Hadovic, 99 Wn.2d at 424). Thus Division One determined the merits ofYoungblood' s sufficiency ofthe evidence argument.

5No. 43389-3- 11

B. 

### The Interests ofJustice Do Not Require Relitigation Because Division One rejected Youngblood' s sufficiency ofthe evidence argument on the merits, his personal restraint petition cannot renew the argument unless relitigation of the issue would serve the interests ofjustice. See Davis, 152 Wn.2d at 671. We hold that the interests ofjustice do not require relitigation in this case. 

### The petitioner bears the burden ofshowing that relitigation ofan issue would serve the interests ofjustice. Taylor, 105 Wn.2d at 689. Although this test "` 

### cannot be too finely
particularized, "' 

### the interests ofjustice may be served by relitigating a purely legal question 

### when there has been an intervening change in the law orthe petitioner has somejustification for 

### failing to raise a crucial point inthe 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 ofjustice 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. RestraintofBybee, 142 Wn.App. 260, 175 P. 3d 589 (2007) Pet. at 7 We disagree.

The Court ofAppeals 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 appeals," using the singular noun to refer to one court. WASH. CONST. art. IV, §§1, 30; accord RCW 2.06. 010 ( establishing " a court of appeals "). In contrast, the Washington Constitution also vestsjudicial power in plural "superior courts,justices ofthe peace, and such inferior courts as the legislature may provide." WASH. CONST. art. IV, § 1.
raiNo. 43389 - 3 -II 

### Appeals is bound to apply Washington law as interpreted bythe 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 ofAppeals case law; instead, Washington law controls in every division of the Court ofAppeals.

### 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 ifhis appeal were considered by the division or the threejudge panel most receptive to his arguments. 

### Additionally,the interests ofjustice do not require relitigation because Youngblood' s 

### sufficiency ofthe evidence argumentwould not succeed on its merits. To resolve aprocedural question raised in a postconviction personal restraint petition, it may be necessary.to "peek at the 

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

### considering whether, in the interests ofjustice, a habeas petition should be dismissed ormerely 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 ofkidnapping because the 

### kidnappings were merely incidental to the robbery. ButYoungblood was convicted of 

### kidnapping Rivera and Damewood; in contrast,the victim ofthe 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 inwhich "there is adirect conflict among prevailing decisions ofpanels of the court [ of appeals]," our legislature has provided for our Supreme Court to resolve such conflicts. RCW 2. 06. 030(e).

7No. 43389 - 3 - II 

### merely incidental to a robberywhen the kidnapping andthe robbery have differentvictims. 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 showthatthe interests ofjustice would be served 

### by relitigation ofhis sufficiency ofthe 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 ofthe panel having determined thatthis opinion will not be printed inthe Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06.040, it is so ordered.

Worswick, C.J.