### FILED JULY 14,2015 In the Office ofthe ClerkofCourt W A State CourtofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 32269-6-111 Respondent, ) (consolidatedwith ) No. 32384-6-111 and v. ) No. 32801-5-111) ) GREGG W. HANSEN, ) UNPUBLISHED OPINION ) Appellant. )



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### ) IntheMatterofPersonal Restraint of: ) ) 

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# I f GREGG W. HANSEN, ) ) Petitioner. ) ) KORSMO, J.

- Byway ofappeal, Gregg Hansencontends thatthe court erred in imposing a $100 DNA (deoxyribonucleic acid) collection fee. Byway ofpersonal restraintpetition (PRP), he also challenges his offender score. Bothcontentions are withoutmerit. We affirm the conviction for failing toregister as a sexoffender and dismiss thepetition. FACTS Mr. Hansenwas convictedoffailing toregister as a sexoffender, third offense, aftera benchtrial. Hisjudgmentand sentence form listed 12 prior adult felonyNo. 32269-6-111 (consolidated with Nos. 32384-6-111 & 32801-5-111) State v. Hansen; PRPa/Hansen convictions, including five previous failure to register convictions. Accordingly, the form recognizes an offender score of"9+." There was no challengeto the offender score calculation and no discussion ofit at sentencing. The court imposed a standard range sentence. The court also imposed onlythe mandatory financial obligations for payment of the crime victim compensation act assessment and a $100 DNA (deoxyribonucleic acid) collection fee. The courtrecognized Mr. Hansen's disability and struck the pre-printed language from thejudgmentand sentence indicating thatthe defendant had the ability to pay his legal financial obligations. Mr. Hansen filed a notice ofappeal at the time ofsentencing. Six weeks laterhe f filed apro se motion to correct sentence, relying upon erR7.8. Deeming it without merit, the trial court transferred the matter to this court for consideration as a PRP. This 

# I t court accepted the transfer and consolidated the PRP with the appeal. 

# 1 ANALYSIS 

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The soleI issue presented by the appeal is a contention thatthe court erred in assessing the DNA collection fee because Mr. Hansen already hadhis DNA sample on 

# I [ f

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IIn his personal Statement ofAdditional Grounds, Mr. Hansen argues various factual considerations as a basis for receiving a different sentence. As these do not 

# I identify legal error, we will not considerthem further. RAP 1O.10(c). 

# I 2 J t; , fNo. 32269-6-II1 (consolidated with Nos. 32384-6-II1 & 32801-5-III) State v. Hansen; PRP of Hansen
file with the State. We address that issue beforeturning to the offender score challenge presented by the PRP. Appeal Mr. Hansen argues that the court erred in failing to exercise its discretion to not require him to give another DNA sample and, therefore, he should not pay the DNA assessment. However, even ifwe accept the dubious proposition that a court can abuse discretion it was never asked to exercise, there was no error here. Even though the court could waive the DNA collection, the courthad no ability to waive the DNA collection fee. Separate statutes govern the two situations. Tworelated statutes are in play here. The first, RCW 43.43.754(1), requires collection ofa DNA sample from every person convicted offailing to register as a sex offender, although it recognizes an exception ifthe "crime laboratory already has a DNA sample
... for a qualifying offense." RCW 43.43.754(2). The second statute is the adjoining RCW 43.43.7541. 

### It provides, in part: Every sentence imposed for a crime specified in RCW43.43.754 must include a fee ofonehundred dollars. The fee is a court-ordered legal financial obligation as defined in RCW 9.94A.030 and other applicable law. For a sentence imposed under chapter 9.94ARCW, the fee is payable by the offender after payment ofall other legal financial obligations included in the sentence has been completed. By amendment ofRCW43.43.7541, the legislature has mandated payment ofthe DNA collection fee. See State v. Brewster, 152 Wn. App. 856,218 P.3d 249 (2009). The
3No. 32269-6-111 (consolidatedwith Nos. 32384-6-111 & 32801-5-111) State v. Hansen; PRP a/Hansen
purpose ofthe fee is to help pay for the testing ofDNA samples and the maintenance and operation ofDNA databases. [d. at 860. To that end, it is a non-punitive legal financial obligation. [d. at 861. Accordingly, it applies to each sentencing after its enactment. [d. RCW 43.43.7541 mandates the assessment ofthe DNA fee for all relevant offenses, including the one for which Mr. Hansen was convicted. Thatpresents a different question than whether the court should waive collection ofan additional DNA sample from Mr. HansenperRCW 43.43.754(2). Even ifthe court had been asked to waive the second collection and had granted the request, Mr. Hansen would still have to pay the fee he now complains about. There is no causal connection between sample collection and the fee assessment. The argument is without merit. PersonalRestraintPetition ThePRP claims that the offender score was wrongly calculated and demands a hearing to "recalculate offender score and hearpertinent inforemation [sic]." This requestputs the cartbefore the horse. A PRP must presentthe pertinent information that establishes errorbefore any hearing can beheld. This petition therefore fails to meet its basic burdens. Theburdens imposed on a petitioner in a PRP are significant. Because ofthe significant societal costs ofcollateral litigation often brought years after a conviction and the need for finality, reliefwill only be granted in a PRP ifthere is constitutional error 4No. 32269-6-III (consolidated with Nos. 32384-6-III & 32801-5-III) State v. Hansen; PRPo/Hansen
that caused substantial actual prejudice or ifa nonconstitutional errorresulted in a fundamental defect constituting a complete miscarriage of justice. In re Pers. Restraint o/Woods, 154 Wn.2d 400, 409, 114 P.3d 607 (2005). 

### It is the petitioner's burden to establish this "threshold requirement." Id. To do so, a PRP mustpresentcompetent evidence in support ofits claims. In re Pers. Restrainto/Rice, 118 Wn.2d 876, 885-86, 828 P.2d 1086, cert. denied, 506 U.S. 958 (1992). Ifthe facts alleged wouldpotentially entitle the petitionerto relief, areference hearing may be ordered to resolve the factual allegations. Id. at 886-87. Here, there is no actual dispute about the facts because Mr. Hansen never presented any competing facts for consideration. Instead, the only information about the offender score comes from thejudgment and sentence, which recognizes 12 prior convictions (totaling 14 points towards the offender score) and an additional point due to the fact that Mr. Hansen was on community supervision at the time ofthe current crime. While the PRP notes that facial invalidity is abasis for attacking a conviction, nothing on the face ofthejudgment and sentence suggests it is facially invalid. Moreover, the PRP itselfmakes no argument in support ofits conclusion. The PRP completely fails to meet its burden ofshowing a fundamental defect in the offender score. Accordingly, the PRP must be dismissed. The conviction is affirmed. Thepetition is dismissed.



### 5No. 32269-6-II1 (consolidated with Nos. 32384-6-III & 32801-5-III) State v. Hansen; PRP of Hansen
A majority ofthe panel has determined this opinion will not be printed in the" Washington Appellate Reports, but it will be filed for public recordpursuant to RCW 2.06.040.

WE CONCUR:

# ~~~ Brown, A.C.J.
Lawrence-Berrey, J.

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