FILED 

Aug. 9, 2016 

In the Office of the Clerk of Court 

WA State Court of Appeals, Division Ill 

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

DIVISION THREE 

STATE OF WASHINGTON, 

Respondent, 

V. 

MELISSA LYNN KERNS, 

Appellant. 

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No. 33831-2-111 

UNPUBLISHED OPINION 

Pennell, J. -Following Melissa Kems's convictions for attempting to elude a 

police vehicle and hit and run (injury accident), the sentencing court imposed legal 

financial obligations (LFOs) that included a mandatory $100 deoxyribonucleic acid 

(DNA) collection fee under RCW 43.43.7541. We affirm. 

FACTS 

A jury found Ms. Kerns guilty as charged of attempting to elude a police vehicle 

and hit and run (injury accident). Her criminal history included 10 prior felony 

convictions. The court rejected her request for a prison-based Drug Offender Sentencing 

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No. 33831-2-III 

State v. Kerns 

Alternative (DOSA) sentence upon determining she was not a suitable candidate. The 

court imposed concurrent sentences of 29 and 60 months respectively for the crimes. The 

court also imposed only mandatory LFOs, including a $500 victim assessment, a $200 

criminal filing fee, and a $100 DNA collection fee. Ms. Kerns did not object to 

imposition of any of the LFOs and did not raise any constitutional claims regarding the 

DNA collection fee. 

ANALYSIS 

Ms. Kerns contends the $100 DNA collection fee mandated by RCW 43.43.7541 

violates substantive due process and equal protection. Identical arguments have been 

rejected by this court previously. State v. Lewis, No. 72637-4-I, 2016 WL 3570550 

(Wash. Ct. App. June 27, 2016); State v. Johnson, No. 32834-1-III, 2016 WL 3124893 

(Wash. Ct. App. June 2, 2016); State v. Mathers, 193 Wn. App. 913, _ P.3d _ 

(2016). We reject them here as well. 

STATEMENT OF ADDITIONAL GROUNDS 

In her statement of addit.ional grounds for review, Ms. Kerns makes two claims 

that she was denied ineffective assistance of counsel: ( 1) counsel refused to call witnesses 

and failed to present 911 records, hospital records or possible photos of recent 

abuse/death threats-all of which she contends would have corroborated her duress 

defense, and (2) counsel failed to use any past drug evaluations or request a new 

drug/mental health evaluation to support her request for a DOSA sentence. 

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No. 33831-2-III 

State v. Kerns 

To prevail on a claim of ineffective assistance of counsel, Ms. Kerns must 

establish both deficient performance and resulting prejudice. Strickland v. Washington, 

466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 

Wn.2d 322, 334-35, 899 P.2d 1251 (1995). But her complaints relate to materials 

outside the trial court record. Ms. Kerns' s avenue for bringing claims based on evidence 

outside the record is through a personal restraint petition, not an appeal. McFarland, 127 

Wn.2d at 335. 

Affirmed. 

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

Pennell, J. 

WE CONCUR: 

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