IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

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STATE OF WASHINGTON, 

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No. 75268-5-1 - rn Xo• eD

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NORMAN EUGENE KELLY, UNPUBLISHED OPINION - =,--it--

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Appellant. FILED: January 16, 2018 ND c—

LEACH, J. — For the first time on appeal, Norman Kelly challenges the

constitutionality of the mandatory crime victim penalty assessment (VPA) and the

deoxyribonucleic acid (DNA) testing fee as applied to him. He also challenges the

trial court's imposition of a DNA fee without considering the effect of his mental

health condition on his ability to pay. His constitutional challenge is not ripe for

review and the claimed error does not constitute manifest constitutional error under

RAP 2.5(a). Generally, the trial court must consider a defendant's ability to pay

even most mandatory legal financial obligations (LF05) when the defendant

suffers from a mental health condition. We affirm in part and remand to the trial

court for it to consider whether Kelly has a mental health condition that would

require it to determine whether he has the ability to pay the DNA fee.

BACKGROUND

In January 2016, the State charged Kelly with possession of

methamphetamine. The trial court ordered a competency evaluation. The
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evaluator determined that Kelly was competent. The evaluator also documented

Kelly's past head injuries, psychological diagnoses, prescription drug use, and

substance abuse issues. A jury convicted Kelly of possession. During the

sentencing hearing in May 2016, the trial court acknowledged that Kelly's mental

health issues, his homelessness, and chemical dependency all contributed to his

commission of the offense. The court imposed an 18-month sentence. In addition,

the court imposed the mandatory $500 VPA under RCW 7.68.035(1)(a) and the

mandatory $100 DNA testing fee under RCW 43.43.690. Kelly did not object. The

court waived all other costs and fees because it found Kelly was indigent. Kelly

challenges the trial court's imposition of the LFOs on appeal.

ANALYSIS

Substantive Due Process 

For the first time on appeal, Kelly challenges the constitutionality of the

imposition of the mandatory VPA and the mandatory DNA fee on indigent

defendants at sentencing. He asserts that his claim is ripe for review and is

reviewable by this court as manifest constitutional error under RAP 2.5(a)(3). We

disagree.

Kelly asserts that the VPA and the DNA fee statutes violate substantive due

process when applied to defendants absent a showing that the defendants have

the ability or likely future ability to pay. We held in State v. Sheltonl that this

1 194 Wn. App. 660, 674, 378 P.3d 230 (2016), review denied, 187 Wn.2d

1002 (2017); see also State v. Curry, 118 Wn.2d 911, 917, 829 P.2d 166 (1992);

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challenge is not ripe for review until the State attempts to collect the fee because

the facts relevant to the claim are not fully developed. No evidence in the record

indicates enforced collections, sanctions, or other negative consequences of

Kelly's criminal debt. We reject Kelly's attempt to distinguish his case from Shelton 

and adhere to that decision. Thus, we conclude that Kelly's substantive due

process claim is not ripe. Further, as we held in Shelton, a claimed due process

error cannot constitute manifest constitutional error subject to review under

RAP 2.5(a) (3) until the State seeks to enforce collection or imposes a sanction for

failure to pay.2

Even if Kelly's argument were ripe for review and he could raise it for the

first time on appeal, it would fail under State v. Seward.3 Kelly acknowledges that

the State has a legitimate interest in imposing the VPA and the DNA fee,4 but he

contends that imposing LFOs on a defendant who lacks the ability to pay does not

rationally serve this interest. On the contrary, Seward held that the VPA and the

DNA fee are rationally related to the State's interest:

State v. Lewis, 194 Wn. App. 709, 715, 379 P.3d 129, review denied, 186 Wn.2d

1025 (2016).

2 Shelton, 194 Wn. App. at 675.

3 196 Wn. App. 579, 384 P.3d 620 (2016), review denied, 188 Wn.2d 1015

(2017).

4 Seward, 196 Wn. App. at 584-85 ("[T]he DNA collection fee serves the

legitimate state interest of funding the collection, analysis, and retention of

convicted offenders' DNA profiles to facilitate future criminal

identifications. . . [T]he VPA serves the legitimate state interest of funding

comprehensive programs to encourage and facilitate testimony by victims and

witnesses of crimes.").

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First, imposing [the VPA and the DNA fees] on all felony offenders

without first considering their ability to pay is rationally related to

legitimate state interests because even though some offenders may

be unable to pay, some will. So the imposition of [the VPA and the

DNA fees] on all offenders creates funding sources for these

purposes.

Second, imposing [the VPA and the DNA fees] on offenders

who may be indigent at the time of sentencing is also rationally

related to funding these purposes because the defendant's indigency

may not always exist. We can conceive of situations in which an

offender who is indigent at the time of sentencing will be able to pay

the fees and assessments in the future. So it is not unreasonable to

believe that imposing these fees and assessments on all indigent

offenders would result in some funding for these purposesPi

We agree with the majority in Seward that the VPA and the DNA fee statutes are

rationally related to legitimate state interests as applied to all offenders. Kelly's

constitutional challenge fails.

The DNA Testing Fee 

For the first time on appeal, Kelly asserts that because he suffers from a

mental health condition, the trial court exceeded its authority by imposing the DNA

fee without first determining whether he had the ability to pay as required by

RCW 9.94A.777(1). The State contends that Kelly waived this issue when he did

not object to the imposition of LFOs by the trial court. "Unpreserved LFO errors

do not command review as a matter of right."6 But, under RAP 2.5(a), we exercise

our discretion to consider the issue.7

5 Seward,196 Wn. App. at 585.

6 State v. Blazina, 182 Wn.2d 827, 833, 344 P.3d 680 (2015).

7 See Blazina, 182 Wn.2d at 834-35.

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The trial court imposed only mandatory LF0s, the $500 VPA and the $100

DNA fee.8 The court waived all discretionary fees and costs based on its finding

that Kelly was indigent. In general, a court must impose mandatory LFOs

regardless of the defendant's ability to pay.8 However, "RCW 9.94A.777(1)

requires that a trial court determine whether a defendant who suffers from a mental

health condition has the ability to pay any LF0s, mandatory or discretionary."10

(1) Before imposing any legal financial obligations upon a defendant

who suffers from a mental health condition, other than restitution or

the victim penalty assessment under RCW 7.68.035, a judge must

first determine that the defendant, under the terms of this section,

has the means to pay such additional sums.

(2) For the purposes of this section, a defendant suffers from

a mental health condition when the defendant has been diagnosed ,

with a mental disorder that prevents the defendant from participating

in gainful employment, as evidenced by a determination of mental

disability as the basis for the defendant's enrollment in a public

assistance program, a record of involuntary hospitalization, or by

competent expert evaluation.1111

Although the State concedes that Kelly suffers from "some mental health

issues," it asserts that Kelly does not have a mental health condition because his

competency evaluator questioned whether he was "malingering.',12 Kelly's

competency evaluation, however, shows Kelly suffers from mental health issues

8 RCW 7.68.035(1)(a) (VPA); RCW 43.43.7541 (DNA fee); State v. Lundy,

176 Wn. App. 96, 102-03, 308 P.3d 755 (2013).

9 Lundy, 176 Wn. App. at 102-03.

10 State v. Tedder, 194 Wn. App. 753, 756, 378 P.3d 246 (2016).

11 RCW 9.94A.777.

12 Included in the competency evaluation is a note from a psychiatrist who

treated Kelly previously; the note states that Kelly has "been known for

malingering." Kelly's evaluator also observed that Kelly's memory difficulties were

"possibly exaggerated" by Kelly.

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including past head injuries, multiple psychological diagnoses, and substance

abuse issues.13 And the record contains no evidence that Kelly has worked since

2005 when a vehicle accident left him physically disabled. The trial court observed

that Kelly's "mental health circumstances" contributed to his commission of the

offense; however, the court did not consider whether Kelly had a mental health

condition as defined by RCW 9.94A.777(2) or whether Kelly had the ability to pay

the DNA fee as required by RCW 9.94A.777(1). We remand for consideration of

whether Kelly has a mental health condition and, if so, whether he has the ability

to pay the DNA fee.

CONCLUSION

We affirm in part and remand for consideration of whether Kelly has a

mental health condition that would require the court to determine whether he can

pay the DNA fee.

WE CONCUR:

13 The evaluator offered the following diagnostic impression: amphetamine

use disorder, cannabis use disorder, history of alcohol use disorder, unspecified

depressive disorder, unspecified personality disorder with antisocial and borderline

traits, and posttraumatic brain injury.

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