In re Pers. Restraint of Knight

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
IN CLERK’S OFFICE OCTOBER 8, 2020
SUPREME COURT, STATE OF WASHINGTON
OCTOBER 8, 2020
SUSAN L. CARLSON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Personal )
Restraint of: ) No. 97066-1
)
AMANDA CHRISTINE KNIGHT, ) En Banc
)
Respondent. ) : October 8, 2020
Filed_____________________
_____________________________________)

OWENS, J. — In 2010, Amanda Christine Knight and her accomplices

ransacked James and Charlene Sanders’ 1 home, zip-tied them, placed them face down

on the floor, stole their wedding rings off their fingers at gunpoint, pistol-whipped

Charlene and her son, and shot and killed James Sanders. A jury convicted Knight of

multiple crimes, including 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 now challenges these convictions under double jeopardy in a personal

restraint petition (PRP), arguing that her robbery and felony murder conviction against

James, as well as her robbery and assault conviction against Charlene, should merge.

1
James Sanders and Charlene Sanders were married and have the same last name. For
purposes of clarity, we refer to them by their first names in this opinion. No disrespect is
intended.
In re Pers. Restraint of Knight
No. 97066-1

The Court of Appeals held that the two convictions against James merge, but declined

to review Knight’s convictions against Charlene because the Court of Appeals had

previously reviewed and dismissed that double jeopardy claim on direct appeal.

We hold that Knight’s convictions against James Sanders do not merge and that

review of her convictions against Charlene Sanders is barred. Knight’s robbery and

felony murder convictions against James served independent effects, falling under an

exception to the double jeopardy merger doctrine. However, the Court of Appeals

correctly held that Knight’s claim against her convictions in regards to Charlene is

barred as it was already raised and dismissed on direct appeal. Accordingly, we

affirm in part and reverse in part the Court of Appeals’ ruling, affirm Knight’s

original conviction and sentence, and dismiss her personal restraint petition.

FACTS

In April 2010, James and Charlene Sanders posted an advertisement on

Craigslist, seeking to sell a wedding ring. On the evening of April 28, after informing

the Sanderses they were interested in purchasing the ring, Amanda Knight and three

other men arrived at the Sanderses’ residence. James invited Knight and one other

man into the kitchen where Charlene soon joined them. Just as the transaction was

seemingly about to be completed, Knight’s accomplice drew a gun and pointed it at

the Sanderses. While holding James and Charlene at gunpoint, Knight and her

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accomplice zip-tied the couple, placed them face down on the floor, and took their

wedding rings off their fingers.

After Knight and her accomplice stole the Sanderses’ rings, Knight’s two

remaining accomplices entered the Sanderses’ house, went upstairs, and brought the

Sanderses’ two children downstairs at gunpoint. Both children were then zip-tied and

one of them was pistol-whipped in the head. As Knight proceeded to ransack the rest

of the house, Knight’s accomplices demanded that Charlene tell them the location of

their safe. When she denied owning a safe, they kicked her in the head and once

again held her at gunpoint.

The Sanderses then admitted to owning a safe, and James agreed to provide

Knight’s accomplices with the combination. At that point, James was pulled off the

floor and his zip tie was loosened. James then broke free of his restraints and jumped

on one of the accomplices. James was attacked and pistol-whipped in the head before

he was fatally shot three times. After James was shot, Knight and her accomplices

fled. The police declared James dead at the scene.

A week later, Knight turned herself in and confessed. The police charged

Knight with one count of first degree murder while in the furtherance of a robbery

(i.e., felony murder), two counts of first degree robbery, two counts of second degree

assault, and one count of first degree burglary, all with firearm enhancements. At

trial, the jury was presented with 45 jury instructions, one of which stated that “[a]

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person commits the crime of Murder in the First Degree when she or an accomplice

commits Robbery in the First Degree and in the course of or in furtherance of such

crime she or another participant causes the death of a person other than one of the

participants.” Clerk’s Papers at 335. In April 2011, the jury found Knight guilty on

all counts, and the trial court sentenced Knight to 860 months in prison.

Knight appealed, arguing that her robbery and assault convictions against

Charlene Sanders merge and that her separate sentences violate double jeopardy.

State v. Knight, 176 Wn. App. 936, 940-41, 309 P.3d 776 (2013). The Court of

Appeals disagreed and dismissed Knight’s appeal. Id. at 951, 956.

In July 2016, Knight filed a PRP with the Court of Appeals, relitigating her

claim that her assault and robbery convictions of Charlene Sanders merge and raising

a new claim that her convictions for the robbery and felony murder of James Sanders

merge as well.2 The Court of Appeals first denied Knight relief, but Knight filed a

motion for reconsideration; the Court of Appeals subsequently held that Knight’s

felony murder conviction merged with her robbery conviction against James Sanders,

but that Knight’s claim regarding her robbery conviction and assault conviction

against Charlene Sanders was barred from review.

2
Knight also argued that the evidence at trial was insufficient to prove first degree felony
murder. The Court of Appeals dismissed this claim, and Knight did not appeal this portion
of the Court of Appeals’ ruling. In re Pers. Restraint of Knight, noted at 7 Wn. App. 2d
1076, 2019 WL 1231402, at *9. Therefore, we do not consider it here.

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Both parties filed motions for discretionary review, which we granted. The

Washington Association of Criminal Defense Lawyers filed an amicus brief.

ISSUES

1. Do Knight’s felony murder and robbery convictions against James

Sanders violate double jeopardy?

2. Is Knight’s claim—arguing that her assault and robbery convictions

against Charlene Sanders violate double jeopardy—barred from review?

ANALYSIS

1. Knight’s Felony Murder and Robbery Convictions against James Sanders
Do Not Violate Double Jeopardy

Whether separate convictions violate double jeopardy is a question of law,

which we review de novo. State v. Hughes, 166 Wn.2d 675, 681, 212 P.3d 558

(2009). Generally, double jeopardy means that defendants are protected from being

convicted for the same offense twice. WASH. CONST. art. I, § 9; U.S. CONST. amend.

V. “In order to qualify as the ‘same offense’ for double jeopardy purposes, the two

offenses must be the same both in law and in fact.” State v. Arndt, 194 Wn.2d 784,

815, 453 P.3d 696 (2019) (citing State v. Calle, 125 Wn.2d 769, 777, 888 P.2d 155

(1995)). “‘Where a defendant’s act supports charges under two criminal statutes, a

court weighing a double jeopardy challenge must determine whether, in light of

legislative intent, the charged crimes constitute the same offense.”’ State v. Freeman,

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153 Wn.2d 765, 771, 108 P.3d 753 (2005) (quoting In re Pers. Restraint of Orange,

152 Wn.2d 795, 815, 100 P.3d 291 (2004)).

When determining whether two convictions and sentences violate double

jeopardy, our analysis begins with whether the legislature “authorized cumulative

punishments for both crimes,” either via “express or implicit legislative intent.” Id. at

771-72. Here, neither the statute for felony murder nor the statute for first degree

robbery explicitly authorizes these crimes to be punished separately from any related

crime. See RCW 9A.32.030; see also RCW 9A.56.190, .200. Furthermore, these

statutes’ legislative history do not reflect that the legislature intended to punish these

offenses separately, making legislative intent unclear in this case.

When our examination of legislative intent does not provide an answer, we then

analyze the convictions under the Blockburger 3 test: “‘[w]here the same act or

transaction constitutes a violation of two distinct statutory provisions, the test to be

applied to determine whether there are two offenses or only one, is whether each

provision requires proof of a fact which the other does not.’” Freeman, 153 Wn.2d at

772 (internal quotation marks omitted) (quoting Orange, 152 Wn.2d at 817). If our

analysis stopped here, then Knight’s separate convictions would violate double

jeopardy because Knight’s felony murder charge required the jury finding that Knight

committed a robbery against James Sanders. See RCW 9A.32.030(1)(c)(1); see also

3
Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).

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RCW 9A.56.190, .200. However, other doctrines and exceptions apply to our double

jeopardy analysis that we must consider before making a final determination.

When legislative intent is unclear, we also consider whether the merger

doctrine is applicable. Freeman, 153 Wn.2d at 772. “Under the merger doctrine,

when the degree of one offense is raised by conduct separately criminalized by the

legislature, we presume the legislature intended to punish both offenses through a

greater sentence for the greater crime.” Id. at 772-73 (citing State v. Vladovic, 99

Wn.2d 413, 419, 662 P.2d 853 (1983)). Again, if our analysis stopped here, Knight’s

separate convictions would violate double jeopardy because felony murder is an

offense “raised by conduct separately criminalized by the legislature” that applies in

Knight’s case—first degree robbery. RCW 9A.56.200; Freeman, 153 Wn.2d at 772-

73.

However, under the merger doctrine, “even if on an abstract level two

convictions appear to be for the same offense or for charges that would merge, if there

is an independent purpose or effect to each, they may be punished as separate

offenses.” Freeman, 153 Wn.2d at 773 (citing State v. Frohs, 83 Wn. App. 803, 807,

924 P.2d 384 (1996)). “‘To establish an independent purpose or effect of a particular

crime, that crime must injure the person or property of the victim or others in a

separate and distinct manner from the crime for which it also serves as an element.’”

Arndt, 194 Wn.2d at 819 (quoting State v. Harris, 167 Wn. App. 340, 355, 272 P.3d

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299 (2012)). “This exception is less focused on abstract legislative intent and more

focused on the facts of the individual case.” Freeman, 153 Wn.2d at 779.

Applying these principles in Freeman, we found that a defendant’s first degree

assault and first degree robbery charges did not have independent purposes or effects.

Freeman ordered the victim, at gunpoint, to hand over all of his valuables. When the

victim refused, Freeman shot him and robbed him before leaving the victim in a

driveway. Id. at 769. We held that Freeman shot the victim “to facilitate the

robbery,” therefore these charges did not serve independent purposes or effects from

each other. Id. at 779.

In contrast, there was a clear independent effect of James Sanders’ murder from

his charged robbery; unlike the defendant’s charges in Freeman, which involved the

same conduct, Knight had already completed the first robbery before the second

robbery began that led to her felony murder charge. A defendant commits a robbery

when they “unlawfully take[] personal property from the person of another . . . by the

use or threatened use of immediate force.” RCW 9A.56.190. “[T]he unit of

prosecution for robbery is each separate forcible taking of property from or from the

presence of a person having an ownership, representative, or possessory interest in the

property, against that person’s will.” State v. Tvedt, 153 Wn.2d 705, 714-15, 107 P.3d

728 (2005). Thus, Knight committed the robbery she was charged with when she and

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her accomplice took James’ ring off his finger; once James was held at gunpoint and

had his ring removed, the robbery was complete.

Subsequently, James was pulled up from the floor and had his zip tie loosened

in order to guide Knight’s accomplices to the safe—a separate robbery. In the middle

of this new robbery, James attacked Knight’s accomplices, who then killed James—

completing Knight’s felony murder charge, as James’ murder was in furtherance of a

second, distinct robbery. Based on the chronology of these events, James’ “‘person or

property’” was injured “‘in a separate and distinct manner’” when he was robbed of

his ring, and then injured “‘in a separate and distinct manner’” when he was shot in

furtherance of Knight’s accomplices robbing the Sanderses of their safe. Arndt, 194

Wn.2d at 819 (quoting Harris, 167 Wn. App. at 355). Knight’s convictions against

James Sanders had “independent effects” from each other and thus do not violate

double jeopardy.

In holding otherwise, the Court of Appeals used a transactional analysis of

robbery to conclude that Knight’s robbery against James Sanders had not been

completed at the time he was shot, and it was completed only once Knight and her

accomplices fled the scene, thus merging her felony murder charge and robbery

charge. In re Knight, 2019 WL 1231402, at *6. But we have used the transactional

view of robbery to conclude only that such force required to complete a robbery need

not be contemporaneous with the taking itself. State v. Johnson, 155 Wn.2d 609, 611,

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121 P.3d 91 (2005) (citing State v. Handburgh, 119 Wn.2d 284, 830 P.2d 641

(1992)).

Even though we have held in the past that each unit of prosecution for robbery

cannot be based on each item that is stolen from one person, Tvedt, 153 Wn.2d at 714,

we are still faced with the requirement that we must look to the facts of the case to see

if there was a “separate forcible taking of property . . . from the presence of a person

having an ownership . . . interest in the property.” Id. at 714-15 (emphasis added),

717 (citing State v. Bobic, 140 Wn.2d 250, 266, 996 P.2d 610 (2000)). We conclude

that even though both the ring and the safe were owned by James, the circumstances

in which these items were stolen were completely distinct from each other as to

constitute two “separate forcible taking[s] of property,” thus the first robbery of James

was completed once his ring was taken off his finger at gunpoint.

Knight argues that the jury instructions did not specify which crimes were

connected to which actions and that this lack of clarity resulted in the jury not

knowing or finding which actions supported which convictions. We disagree.

Beyond the cases that Knight cites to in support of this claim—none of which

conclude that a lack of specificity in jury instructions alone violates double

jeopardy—Knight’s assertion seems to relate to what we stated in State v. Coleman:

“When the prosecution presents evidence of multiple acts of like misconduct, any one

of which could form the basis of a count charged, either the State must elect which of

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such acts is relied upon for a conviction or the court must instruct the jury to agree on

a specific criminal act.” 159 Wn.2d 509, 511, 150 P.3d 1126 (2007).

The State made this election during its closing argument. Such an election by

the State need not be formally pleaded or incorporated into the information. State v.

Carson, 184 Wn.2d 207, 227, 357 P.3d 1064 (2015). As long as the election clearly

identifies the particular acts on which charges are based, verbally telling the jury of

the election during closing argument is sufficient. Id. The State listed each count and

which acts applied to which count during closing argument. 7 Verbatim Report of

Proceedings (VRP) at 1002-07. The State, concededly, was unclear when discussing

the felony murder count and which robbery applied to that count; however, before

listing such counts, the State sequenced each of the acts Knight and her accomplices

performed, clearly showing that the robbery of the ring was complete before Knight’s

accomplices engaged in another robbery of the Sanderses’ safe and the subsequent

murder of James Sanders. VRP at 997-99.

Knight argues that we must look at the jury instructions to determine whether

such crimes merge under double jeopardy, citing State v. Kier, 164 Wn.2d 798, 194

P.3d 212 (2008), in support. Resp. of Amanda Knight to State’s Mot. for Discr.

Review at 7-9. While we did look at the jury instructions in Kier, we never stated the

jury instructions must lay out the facts underlying each charge. We looked at the

entire trial record in Kier to determine if there was ambiguity in the defendant’s

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charges. 164 Wn.2d at 808-11; see also State v. Mutch, 171 Wn.2d 646, 664, 254

P.3d 803 (2011) (“‘[I]n reviewing allegations of double jeopardy, an appellate court

may review the entire record to establish what was before the court.’” (quoting State

v. Noltie, 116 Wn.2d 831, 848-49, 809 P.2d 190 (1991))). And in contrast to Kier,

where the State’s evidence failed to stipulate which robberies applied to which

victims, 164 Wn.2d at 814, when looking at the trial record here, the State clearly laid

out to the jury which actions applied to which of Knight’s charges against James

Sanders.

2. Knight’s Collateral Attack on Her First Degree Robbery and Second
Degree Assault Convictions against Charlene Sanders Is Barred

Knight’s double jeopardy challenge to her robbery and assault convictions

against Charlene was fully litigated on the merits and disposed of on direct appeal.

Knight, 176 Wn. App. at 956. Accordingly, Knight is barred from renewing this

claim in her PRP unless we determine that the interests of justice require relitigation

of this issue. In re Pers. Restraint of Yates, 177 Wn.2d 1, 17, 296 P.3d 872 (2013)

(quoting In re Pers. Restraint of Davis, 152 Wn.2d 647, 671, 101 P.3d 1 (2004)).

“The interests of justice are served by reconsidering a ground for relief if there has

been ‘an intervening change in the law or some other justification for having failed to

raise a crucial point or argument in the prior application.’” Id. (internal quotation

marks omitted) (quoting In re Pers. Restraint of Stenson, 142 Wn.2d 710, 720, 16

P.3d 1 (2001)).

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Knight argues that since her direct appeal was decided in 2013, an intervening

decision by Division One of the Court of Appeals, State v. Whittaker, 192 Wn. App.

395, 416-17, 367 P.3d 1092 (2016), compels our review of these two convictions.

Knight is incorrect. Knight argues that Whittaker established a new rule for courts

reviewing double jeopardy claims; specifically, that the language in both the charging

documents and the jury instructions or verdicts must exclude the possibility that the

defendant has been punished twice for the same offense. However, as discussed

above, the proper application of the merger doctrine is not confined to the jury

instructions or the charging information—to the contrary, we look to the entire trial

record, particularly the evidence presented to the witnesses, closing arguments, and

the jury instructions. Kier, 164 Wn.2d at 813. Knight’s reliance on Whittaker is

unavailing and her claim that collateral review is warranted in the interests of justice

fails. Because Knight fails to raise any other justification for reconsideration,

collateral review of her convictions against Charlene Sanders is barred.

CONCLUSION

We hold that Knight’s robbery and felony murder charges against James

Sanders had an independent effect, as the first robbery against James was already

completed before James was murdered in the furtherance of a second, distinct

robbery. We further hold that Knight’s second claim—that her robbery and assault

convictions against Charlene Sanders violate double jeopardy—is barred because the

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Court of Appeals already reviewed and dismissed this claim on direct appeal.

Accordingly, we affirm in part and reverse in part the Court of Appeals’ judgment,

and we affirm Knight’s original conviction and sentence, effectively dismissing her

personal restraint petition.

WE CONCUR:

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In re Pers. Restraint of Knight, No. 97066-1
(Yu, J., dissenting)

No. 97066-1

YU, J. (dissenting) — The majority holds that Amanda Christine Knight’s

separate convictions for the robbery and felony murder of James Sanders 1 do not

violate the constitutional prohibition on double jeopardy because they had

independent effects. To reach this holding, the majority goes beyond the jury’s

verdicts to engage in independent appellate fact-finding, contrary to this court’s

own precedent. I would decline to do so and would therefore affirm the Court of

Appeals on this issue. Furthermore, I would reach the merits of Knight’s double

jeopardy challenge to her separate convictions for the robbery and assault of

Charlene Sanders because the interests of justice require us to do so. On the

1
For clarity, we will use James Sanders’ and Charlene Sanders’ first names in this
opinion. No disrespect is intended.
In re Pers. Restraint of Knight, No. 97066-1
(Yu, J., dissenting)

merits, I would hold that these separate convictions violate double jeopardy

principles. I therefore respectfully dissent.

ANALYSIS

A. Knight’s separate convictions for the robbery and felony murder of James
Sanders violate the constitutional prohibition on double jeopardy

The State and federal constitutions prohibit the government from putting a

person in “jeopardy” twice for the “same offense.” WASH. CONST. art. I, § 9; U.S.

CONST. amend. V. This prohibition on double jeopardy means that courts may not

“enter multiple convictions for the same offense.” State v. Freeman, 153 Wn.2d

765, 770, 108 P.3d 753 (2005). In deciding this constitutional issue, “[o]ur review

is de novo, and legislative intent is the touchstone.” State v. Kier, 164 Wn.2d 798,

804, 194 P.3d 212 (2008).

We follow four analytical steps to determine legislative intent
regarding whether cumulative punishment is authorized:
(1) consideration of any express or implicit legislative intent,
(2) application of the Blockburger[ v. United States, 284 U.S. 299,
304, 52 S. Ct. 180, 76 L. Ed. 306 (1932)], or “same evidence,” test,
(3) application of the “merger doctrine,” and (4) consideration of any
independent purpose or effect that would allow punishment as a
separate offense.

State v. Arndt, 194 Wn.2d 784, 816, 453 P.3d 696 (2019) (footnote omitted).

Express or implicit legislative intent “may be clear on the face of the statute,

found in the legislative history, the structure of the statutes, the fact the two

statutes are directed at eliminating different evils, or any other source of legislative

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(Yu, J., dissenting)

intent.” Freeman, 153 Wn.2d at 773. Where the legislature did not clearly intend

to allow separate punishments, we use the Blockburger test, the merger doctrine,

and the independent purpose or effect test as tools of statutory construction. Id. at

776, 777-79. In using these tools, we “consider the elements of the crimes as

charged and proved, not merely as the level of an abstract articulation of the

elements.” Id. at 777.

As the majority correctly recognizes, there is no express statutory language

in either the felony murder statute, RCW 9A.32.030(1)(c), or the first degree

robbery statute, RCW 9A.56.200(1), to indicate that “the legislature expressly told

us that both punishments are permissible.” State v. Muhammad, 194 Wn.2d 577,

617, 451 P.3d 1060 (2019) (plurality opinion) (Gordon McCloud, J., opinion);

majority at 6. Thus, this step counsels in favor of holding there is a double

jeopardy violation.

Next, we consider the “closely related” Blockburger test and merger

doctrine. Muhammad, 194 Wn.2d at 618 (Gordon McCloud, J., opinion). Both

tests are applied when the same conduct is used to prove violations of multiple

criminal provisions, and both shed light on legislative intent as to whether the two

convictions should be treated as the same offense for double jeopardy purposes.

The Blockburger test provides that convictions under two provisions are not

the same offense if “‘each provision requires proof of a fact which the other does

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(Yu, J., dissenting)

not.’” State v. Calle, 125 Wn.2d 769, 778, 888 P.2d 155 (1995) (quoting

Blockburger, 284 U.S. at 304). The majority correctly recognizes that applying the

Blockburger test would require us to hold there is a double jeopardy violation here

“because Knight’s felony murder charge required the jury finding that Knight

committed a robbery against James Sanders.” Majority at 6.

Finally, the merger doctrine provides that “when the degree of one offense is

raised by conduct separately criminalized by the legislature, we presume the

legislature intended to punish both offenses through a greater sentence for the

greater crime.” Freeman, 153 Wn.2d at 772-73 (emphasis added). The majority

correctly notes that this presumption would ordinarily require us to hold Knight’s

separate convictions for the robbery and felony murder of James Sanders violate

double jeopardy. Majority at 7. However, the majority goes on to engage in

independent fact-finding to determine that in this case, there is no double jeopardy

violation because these two offenses had independent effects.

The independent purpose or effects test relied on by the majority operates as

an “exception” to the merger doctrine; it is not the ordinary rule. Arndt, 194

Wn.2d at 819. Moreover, it cannot undermine controlling Supreme Court

precedent holding that where a greater and lesser offense each involve the same

victim and act, the greater offense is “by definition the ‘same’ for purposes of

double jeopardy as any lesser offense included in it.” Brown v. Ohio, 432 U.S.

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(Yu, J., dissenting)

161, 168, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977). Nevertheless, the majority

contends that there were two distinct acts here because the robbery of James

Sanders was “completed” when his ring was taken from his hand, while his murder

served the independent effect of facilitating the attempted robbery from the family

safe. Majority at 8.

This view directly contradicts the jury instructions, which required the jury

to find “[t]hat the defendant or an accomplice caused the death of James Sanders,

Sr[.], in the course of or in furtherance of” the robbery of James Sanders. Clerk’s

Papers (CP) at 336 (emphasis added). They were not given the option of finding

that the murder was “in immediate flight” from the robbery. RCW

9A.32.030(1)(c). They were not instructed that the felony murder charge was

based on the attempted robbery of the safe, as opposed to the robbery of the ring.

Thus, the instructions allowed the jury to find that the robbery of James Sanders’s

ring was not completed at the time he was murdered because the murder was

committed “in the course of or furtherance of ” that same robbery. This ambiguity

must be construed in Knight’s favor. Kier, 164 Wn.2d at 811-14; State v.

Whittaker, 192 Wn. App. 395, 416-17, 367 P.3d 1092 (2016). In concluding

otherwise, the majority impermissibly substitutes its view of the facts for the

findings of the jury.

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(Yu, J., dissenting)

In addition, the majority contends that any ambiguities that could have

resulted from the jury instructions were clarified during the State’s closing

argument, even though the majority acknowledges that “[t]he State, concededly,

was unclear when discussing the felony murder count and which robbery applied

to that count.” Majority at 11. Our precedent consistently states that in order to be

effective, the State’s election of particular acts to support particular charges in

closing argument must be made “clearly and explicitly.” State v. Carson, 184

Wn.2d 207, 228, 357 P.3d 1064 (2015). I cannot understand how the State can

simultaneously be concededly unclear and clear and explicit. I would therefore hold

that any ambiguities in the jury’s verdicts must be interpreted in Knight’s favor, in

accordance with our precedent.

Thus, I would hold that based on the charges as proved to the jury, the State

has not overcome the presumption that the robbery of James Sanders merges with

the felony murder of James Sanders. I would therefore affirm the Court of Appeals

on this issue and remand for the robbery conviction to be vacated.

B. Knight’s separate convictions for the robbery and assault of Charlene
Sanders violate the constitutional prohibition on double jeopardy

Knight also claims that the second degree assault of Charlene Sanders

merges with the first degree robbery of Charlene Sanders. The majority refuses to

reach the merits of this claim because it was raised and rejected on direct appeal. I

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(Yu, J., dissenting)

would reach the merits and hold that the assault and robbery of Charlene Sanders

merge, so the assault conviction must be vacated.

1. In the interests of justice, we should revisit this issue on the merits

Because a personal restraint petition (PRP) is not a substitute for direct

appeal, “[t]he petitioner in a personal restraint petition is prohibited from renewing

an issue that was raised and rejected on direct appeal unless the interests of justice

require relitigation of that issue.” In re Pers. Restraint of Davis, 152 Wn.2d 647,

671, 101 P.3d 1 (2004) (footnotes omitted). The majority holds that the interests of

justice do not require relitigation of Knight’s claim that her convictions for the

robbery and assault of Charlene Sanders violate double jeopardy because that issue

“was fully litigated on the merits and disposed of on direct appeal.” Majority at 12.

However, in determining whether the interests of justice require relitigation of a

previously determined issue, we do not rely on an “‘exhaustive’” list of criteria. In

re Pers. Restraint of Taylor, 105 Wn.2d 683, 688-89, 717 P.2d 755 (1986) (quoting

Sanders v. United States, 373 U.S. 1, 17, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963)).

Instead, we must remain aware that “‘the test is “the ends of justice” and it cannot

be too finely particularized.’” Id. (quoting Sanders, 373 U.S. at 17). I would hold

that intervening cases have clarified and refined the proper analysis of this issue,

such that reconsideration on the merits is warranted.

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In re Pers. Restraint of Knight, No. 97066-1
(Yu, J., dissenting)

While the majority is correct that there has not been any groundbreaking

“intervening change in the law” since Knight’s direct appeal, that is not the

exclusive test to determine whether the interests of justice require relitigation. In

re Pers. Restraint of Stenson, 142 Wn.2d 710, 720, 16 P.3d 1 (2001). We have

previously revisited issues in the interests of justice based on intervening case law

that gave us “an opportunity to refine” our analysis. In re Pers. Restraint of

Jeffries, 114 Wn.2d 485, 489, 789 P.2d 731 (1990). Such intervening case law is

present here.

Since Knight’s direct appeal was decided, there have been intervening

published opinions that clarify the standards for appellate review of double

jeopardy claims that conflict with the analytical approach taken by the Court of

Appeals when it considered Knight’s claim direct appeal. Specifically, the court

on direct appeal in this case interpreted the jury’s ambiguous verdicts in the light

most favorable to the State, concluding that because the evidence could have

supported multiple convictions without violating double jeopardy, there was no

double jeopardy violation. However, subsequent published opinions have held that

ambiguous jury verdicts must be interpreted in the light most favorable to the

defendant. See Muhammad, 194 Wn.2d 577; Whittaker, 192 Wn. App. 395.

Where there has been a “refinement in our analytical approach to a legal issue . . .

[w]hether the ends of justice would be served by reconsideration will depend upon

8
In re Pers. Restraint of Knight, No. 97066-1
(Yu, J., dissenting)

the nature of the issue raised, the extent to which the refinement constitutes a

change in the law, and the seriousness of the consequences of error.” Jeffries, 114

Wn.2d at 489 n.6. Those criteria are met here.

The nature of the issue is a double jeopardy claim, one of the few claims not

subject to the one-year statutory time bar for collateral attacks. RCW

10.73.100(3). And in this case, Knight raised both of her double jeopardy claims

at trial but raised only the claim regarding Charlene Sanders on appeal.

Considering the merits of her claim regarding James, but not Charlene, creates a

negative incentive to strategically forgo issues on appeal, at least for double

jeopardy and other claims that are exempt from the statutory time bar for collateral

review. Otherwise, forgone claims (such as the double jeopardy claim relating to

James Sanders) will be considered on the merits, while issues properly raised on

appeal (such as the double jeopardy claim relating to Charlene Sanders) will not.

In addition, while the refinements in double jeopardy analysis did not

completely change the law, they have changed the approach appellate courts have

taken to claims such as Knight’s. The Court of Appeals’ decision on Knight’s

double jeopardy claim as to James Sanders demonstrates this changed approach, as

do several unpublished appellate decisions issued after Knight’s direct appeal.

E.g., State v. Anderson, No. 75834-9-I, slip op. at 5 (Wash. Ct. App. July 30, 2018)

(unpublished), http://www.courts.wa.gov/opinions/pdf/758349.PDF; State v.

9
In re Pers. Restraint of Knight, No. 97066-1
(Yu, J., dissenting)

Maynor, No. 70858-9-I, slip op. at 7-8 (Wash. Ct. App. Oct. 12, 2015)

(unpublished), http://www.courts.wa.gov/opinions/pdf/708589.pdf. And the

consequences of error are severe, both for Knight, who has a conviction on her

record that violates the constitutional prohibition on double jeopardy, and for

future litigants, who cannot be sure which line of double jeopardy cases a court

will follow in assessing their claims.

Thus, although this claim does not fit neatly into any of the categories for

revisiting claims that were rejected on direct appeal, the interests of justice counsel

in favor of reaching the merits, if for no other reason than to clarify inconsistencies

in the case law.

2. Separate punishments for the robbery and assault of Charlene Sanders
violates the prohibition on double jeopardy

The merits of Knight’s double jeopardy claim as to the robbery and assault

of Charlene Sanders depend very much on the way those offenses were charged

and proved to the jury. The evidence and the jury instructions provided several

alternative methods to convict, and the jury was not asked to elect between them.

Depending on what the jury actually found, the second degree assault of Charlene

would merge with the first degree robbery of Charlene, and, as noted above, we

must interpret the jury’s ambiguous verdict in Knight’s favor. I would therefore

10
In re Pers. Restraint of Knight, No. 97066-1
(Yu, J., dissenting)

grant relief on this claim and remand for the sentencing court to vacate Knight’s

conviction for the assault of Charlene.

Returning to the four-part analysis of double jeopardy claims discussed

above, there is no express language in either the first degree robbery statute, RCW

9A.56.200, or the second degree assault statute, RCW 9A.36.021, indicating that

the legislature intended to require separate punishments in all cases. We must

therefore turn to the offenses as charged and proved in this case to apply the

Blockburger test, the merger doctrine, and the independent purpose or effects rule.

In this case, to elevate the robbery charge to robbery in the first degree, the

jury was required to find either of the following: “(a) That in the commission of

these acts [of unlawfully taking personal property] the defendant or an accomplice

was armed with a deadly weapon; or (b) That in the commission of these acts the

defendant or an accomplice inflicted bodily injury.” CP at 354 (emphasis added).

The jury was also instructed that in order to convict Knight of the second degree

assault of Charlene, they must find that “the defendant or an accomplice: (a)

intentionally assaulted Charlene Sanders and thereby recklessly inflicted

substantial bodily harm; or (b) assaulted Charlene Sanders with a deadly weapon.”

CP at 353 (emphasis added). Based on this instruction, the jury could have

convicted Knight of second degree assault based on several acts, including putting

11
In re Pers. Restraint of Knight, No. 97066-1
(Yu, J., dissenting)

a gun to Charlene’s head while her ring was stolen or kicking Charlene in the head

when she said there was no safe.

Both the trial court and the court on direct appeal rejected Knight’s double

jeopardy claim based on the assumption that the jury convicted Knight of first

degree robbery because a gun was placed to Charlene’s head while her ring was

taken, but convicted Knight of assault because Charlene was later kicked in the

head. State v. Knight, 176 Wn. App. 936, 954-55, 309 P.3d 776 (2013); 8

Verbatim Report of Proceedings (May 13, 2011) at 1090. If the jury had made

such a finding, this view would make sense because both the robbery and the

assault would require proof of a fact the other did not: the robbery would require

proof that during the robbery, the defendant or an accomplice was armed with a

deadly weapon, while the assault would require proof that during the assault, the

defendant or an accomplice inflicted substantial bodily harm. The offenses would

therefore be different in accordance with the Blockburger test and would not

merge, indicating the legislature intended separate punishments.

However, while the jury could have made such a finding based on the

evidence, they did not, and they were not asked to do so. They were instructed in

the alternative and not required to choose between the alternative bases for

conviction. Published decisions issued after Knight’s direct appeal make it clear

that appellate courts assessing double jeopardy claims must view ambiguous jury

12
In re Pers. Restraint of Knight, No. 97066-1
(Yu, J., dissenting)

verdicts in favor of the defendant, not the State. For instance, in contrast to

Division Two’s analysis in this case, Division One in Whittaker recognized that

where the jury could have convicted on alternative bases, all of which were

supported by the evidence, “[w]e simply cannot exclude the possibility that the

jury convicted on the basis” that would prevent a double jeopardy violation. 192

Wn. App. at 416. Likewise, this court in Muhammad recognized that ambiguity in

the legislature’s intent to impose separate punishments must be interpreted in the

defendant’s favor. 194 Wn.2d at 622 (Gordon McCloud, J., opinion). Neither of

these opinions made new law, but both show that the court on direct appeal in

Knight’s case took the wrong approach by interpreting the ambiguous verdicts in

the light most favorable to the State.

Based on the evidence presented, the jury could have convicted Knight of

robbery based on the act of placing a gun to Charlene’s head while her ring was

taken and could have convicted Knight of assault based on the same act.

Interpreted this way, Knight’s convictions for the robbery and assault of Charlene

violate the prohibition on double jeopardy because the assault was necessary to

elevate the robbery to a first degree offense. The merger doctrine thus requires us

to presume that the legislature intended to punish both offenses through the

robbery conviction, and there was no independent purpose or effect for the assault

that would overcome the presumption.

13
In re Pers. Restraint of Knight, No. 97066-1
(Yu, J., dissenting)

I would therefore grant Knight’s PRP on her double jeopardy claim

regarding Charlene Sanders and remand to the sentencing court to vacate the

assault conviction.

CONCLUSION

Knight’s role in the home invasion robbery that resulted in the death of

James Sanders undoubtedly warrants significant punishment. However, that

punishment must be limited to what the legislature intended. Based on the way

Knight’s convictions were proved in this case, we should hold that the legislature

intended for the murder and robbery of James Sanders to be punished only through

the sentence for the murder conviction, rather than separate convictions for both

the murder and the robbery. Likewise, the robbery and assault of Charlene Sanders

must both be punished through the sentence for the robbery conviction. I would

therefore remand to the trial court to vacate Knight’s convictions for the robbery of

James Sanders and the assault of Charlene Sanders. I respectfully dissent.

14
In re Pers. Restraint of Knight, No. 97066-1
(Yu, J., dissenting)

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