In re Personal Restraint Petition of Knight

Decision Date14 March 2019
Docket Number49337-3-II
CourtWashington Court of Appeals
PartiesIn re the Personal Restraint Petition of: AMANDA CHRISTINE KNIGHT, Petitioner.

UNPUBLISHED OPINION

Melnick, P.J.

Amanda Christine Knight seeks relief from personal restraint. A jury convicted her of felony murder in the first degree, two counts of robbery in the first degree, two counts of assault in the second degree, and burglary in the first degree. Knight appealed and we affirmed her convictions.[1]

In this personal restraint petition (PRP), Knight claims that one of her robbery convictions merges with her felony murder conviction because they involve the same victim, James Sanders. She also argues that because of a change in law since her appeal, her other robbery conviction merges with one of the assault convictions because they involve the same victim, Charlene Sanders[2]. We conclude that the felony murder conviction merges with the robbery conviction.[3] We grant the PRP in part, deny it in part, and remand to the trial court for resentencing consistent with this opinion.

FACTS[4]

In April 2010, Knight, Kyoshi Higashi, Joshua Reese, and Clabon Berniard all participated in a home invasion robbery in Lake Stevens. Not long afterwards, Higashi contacted Knight and told her that he wanted to commit another robbery.

After finding a Craigslist advertisement for a wedding ring James had posted, Knight called him from a nontraceable disposable phone and asked if she and her boyfriend could see the ring. Wanting to arrive after dark, Knight arranged to meet James at the Sanders' house that evening.

Knight drove Higashi, Berniard, and Reese to the Sanders' house and parked so they could make a quick getaway. Higashi possessed Knight's firearm; Reese and Berniard also possessed firearms. They had zip ties and masks with them. Reese and Berniard remained in the car. Knight put on a pair of gloves. Higashi handed her several zip ties.

Knight and Higashi met James outside the house and then walked into the Sanders' kitchen. Once inside, James handed an old wedding ring to Knight and Higashi. James then called upstairs to his wife to come downstairs and help him answer Knight's and Higashi's questions about the ring. The Sanders' two sons remained upstairs.

Knight told James that she was interested in buying the ring. Higashi revealed a large amount of cash, but also displayed a gun and threatened James and Charlene. The Sanders told Higashi and Knight to take whatever they wanted and leave.

Knight zip-tied Charlene's hands behind her back and Higachi did the same to James. Knight then removed Charlene's wedding ring from her finger and either Knight or Higashi removed James's wedding ring from his finger. Knight and Higashi ordered James and Charlene to lie face down on the floor.

Using a Bluetooth device, Knight signaled Reese and Berniard to enter the home. Knight knew that Reese and Berniard possessed loaded guns and that using these guns was part of the group's plan to carry out the Sanders' home invasion robbery.

Once inside the house, Reese and Berniard went upstairs, and at gunpoint, they forced the Sanders' two sons to come downstairs and lie face down near the kitchen entryway. Charlene and one son watched as Knight and Higashi gathered items from the house. Knight also ransacked the main upstairs bedroom as she looked for expensive items to steal.

While Knight was upstairs, Berniard held a gun to Charlene's head, cocked the hammer, began counting down, and asked '"Where is your safe.'" State v Knight, 176 Wn.App. 936, 963, 309 P.3d 776 (2013) (quoting 5 Report of Proceedings (RP) at 586). When Charlene responded that they did not own a safe, Berniard kicked her in the head and threatened to kill her and her children. Believing she was going to die, Charlene eventually admitted that they had a safe in the garage.

Berniard forced James into the garage. James broke free of his restraints and attacked Berniard. Berniard shot James in the ear, knocking him unconscious. One of the sons then jumped on Berniard who threw him off and hit him with the butt of his firearm.

Reese then dragged James's body through the kitchen and into the adjacent living room, where they were out of sight. Either Reese or Berniard shot James multiple times, causing fatal internal bleeding.

Immediately following the gunshots, the four intruders fled. After they left, Charlene found James on the living room floor and called 911. The police declared James dead at the scene. The State charged Knight with felony murder in the first degree two counts of robbery in the first degree, two counts of assault in the second degree, and one count of burglary in the first degree. Each count alleged accomplice liability aggravating factors, and that one of the participants in the crime was armed with a firearm.

The trial court instructed the jury that to convict Knight of murder in the first degree, the State had to prove beyond a reasonable doubt that "the defendant or an accomplice committed Robbery in the First Degree [and] ... the defendant or an accomplice caused the death of James . . . in the course of or in furtherance of such crime." PRP, App. A (Instr. 9).

In closing argument, the State argued that the felony murder was based on the robbery of the rings.

With respect to murder in the first degree, which is Count I in your jury instructions, again, no issue that this occurred on April 28. Charlene testified that her wedding ring was stolen, [James's] wedding ring was stolen. The state has to prove that the defendant or an accomplice caused the death of someone who is not a participant in the crime. Excuse me. Higashi shot and killed James ... in the course of this robbery.

7 RP at 1007

At sentencing, Knight argued that the convictions for the two second degree assaults and the two robberies should merge, and that the conviction for the assault of James should merge into the felony murder conviction. She also argued that, for sentencing purposes, all of her convictions were based on the same criminal conduct and, therefore, she should only be sentenced on the first degree felony murder conviction. During Knight's sentencing argument, she confirmed that the robbery of James was based on "the taking of the ring at gunpoint." 8 RP at 1076.

In response, the State characterized Knight's argument as a double jeopardy argument asserting that the convictions for the two counts of second degree assault should merge into the convictions for the robberies because the assaults elevated the degree of the robberies to first degree robberies. During this argument, the State again emphasized that the robberies were completed "when the rings were removed from Charlene['s] finger and James['s] finger," so that the robberies could not merge with the later assaults of Charlene and one of the children 8 RP at 1083.

The trial court rejected Knight's arguments and ruled that

[T]he robbery, that is, of the ring, was completed before the assaults and the murder occurred. Therefore, although they occurred in the same place, [the first degree felony murder, the two robberies, and the assault of Charlene, did] not occur at the same time. The robbery of James['s ring] was completed, as well as the robbery of Charlene['s], at the time their rings were stolen. And therefore, the murder and the assaults would not be the same criminal conduct because of that.
In addition, we have a different person involved in the assaults, which is Clabon Berniard, and therefore, it's a completely separate criminal act for that purpose.

8 RP at 1090. Knight appealed her convictions and we affirmed. Knight, 176 Wn.App. 936. We decided numerous issues including that sufficient evidence supported the two assault convictions, and that the assault of Charlene did not merge with the robbery of Charlene. A mandate issued on March 7, 2014. Knight filed this PRP on July 14, 2016.

ANALYSIS

Knight argues that her convictions for the first degree robbery of James and the first degree felony murder of James violate double jeopardy because the convictions merge. We agree. She also argues that a change in the law necessitates our reconsidering our prior decision that her convictions for the first degree robbery of Charlene and the second degree assault of Charlene did not merge. We disagree.

I. PRP Standards

In a PRP, the petitioner has the initial burden. RAP 16.4; In re Pers. Restraint of Lord, 152 Wn.2d 182, 188, 94 P.3d 952 (2004). "A personal restraint petitioner must prove either a (1) constitutional error that results in actual and substantial prejudice or (2) nonconstitutional error that 'constitutes a fundamental defect which inherently results in a complete miscarriage of justice.'" In re Pers. Restraint of Monschke, 160 Wn.App. 479 488, 251 P.3d 884 (2010) (internal quotation marks omitted) (quoting In re Pers. Restraint of Davis, 152 Wn.2d 647, 672, 101 P.3d 1 (2004)). The petitioner must prove the error by a preponderance of the evidence. Lord, 152 Wn.2d at 188. In addition, "[f]he petitioner must support the petition with facts or evidence and may not rely solely on conclusory allegations." Monschke, 160 Wn.App. at 488; see RAP 16.7(a)(2)(i).

In evaluating PRPs, we can "(1) dismiss the petition if the petitioner fails to make a prima facie showing of constitutional or nonconstitutional error, (2) remand for a full hearing if the petitioner makes a prima facie showing but the merits of the contentions cannot be determined solely from the record, or (3) grant the PRP without further hearing if the petitioner has proven actual prejudice or a miscarriage of justice." In re Pers. Restraint of Stockwell, 160 Wn.App. 172, 176-77, 248 P.3d 576 (2011).

A PRP is not a substitute for direct appeal and...

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