IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                  No. 75349-5-1
                     Respondent,
                                                  DIVISION ONE
         V.

KHALIL FAHEEM ISLAM,                              UNPUBLISHED OPINION
                                                                                    ••


                                                                                    N.)
                     Appellant.                   FILED: September 25, 2017 kia


       PER CURIAM. Khalil Islam appeals the victim penalty assessment(VPA)

and the deoxyribonucleic acid (DNA)collection fee imposed following his

conviction for second degree assault. For the first time on appeal, he claims the

statutes authorizing these mandatory financial obligations are unconstitutional as

applied to defendants who do not have the ability or likely future ability to pay

them. He concedes his contention is not ripe for review under our decision in

State v. Shelton, 194 Wn. App. 660, 671-74, 378 P.3d 230 (2016), review denied,

187 Wn.2d 1002, 386 P.3d 1088 (2017),1 but contends Shelton is wrongly

decided because it relied on a distinguishable case -- State v. Curry, 118 Wn.2d

911, 829 P.2d 166 (1992). We adhere to our decision in Shelton.

       Regardless of whether Curry is distinguishable in some respect, it still

supports Shelton's holding that an as applied substantive due process challenge

to financial obligations is not ripe until the State attempts to collect them. Curry,

118 Wn.2d at 917; see also State v. Curry, 62 Wn. App. 676, 681, 814 P.2d 1252


1 Accord State v. Lewis, 194 Wn. App. 709, 714-15, 379 P.3d 129, review denied, 186
Wn.2d 1025, 385 P.3d 118 (2016).
No. 75349-5-1/2



(1991), aff'd, 118 Wn.2d 911, 917, 829 P.2d 166 (1992). We adhere to that

holding, which applies equally to DNA and VPA assessments/fees.2 We also

adhere to Shelton's holding that as-applied due process claims cannot constitute

manifest constitutional error under RAP 2.5(a) until the State seeks to enforce

collection of the fees or imposes a sanction for failure to pay.3 While this court

does have discretion to review Islam's claim under RAP 2.5(a) in the absence of

manifest constitutional error, the claim is not ripe and Islam has not shown that a

significant risk of hardship will result from declining review at this time. See

Shelton, 194 Wn.App. at 670; State v. Cates, 183 Wn.2d 531, 536, 354 P.3d 832

(2015).

       Finally, even if Islam's contentions were ripe for review and could be

raised for the first time on appeal, they would fail under State v. Seward, 196 Wn.

App. 579, 384 P.3d 620(2016), review denied, 188 Wn.2d 1015, 396 P.3d 349

(2017)(imposition of VPA, DNA collection fee, and criminal filing fee prior to any

individualized determination of ability to pay is rationally related to a legitimate

state interest). Islam's arguments regarding costs on appeal are moot as the




2 State v. Tyler, 195 Wn. App. 385, 404 n.11, 382 P.3d 699(2016)(applying Shelton to
mandatory VPA and rejecting argument that RCW 10.01.160(3) applies to mandatory
financial obligations).
3 Shelton, at 672-73(RAP 2.5(a)(3) bars challenge to VPA, DNA fee and filing fee for the
first time on appeal because the claimed error is not "manifest" "[u]ntil the State attempts
to enforce collection of the... fee or impose sanctions for failure to pay."); accord
Lewis, 194 Wn. App. at 715.

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State does not intend to seek such costs.

      Affirmed.

          For the Court:




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