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lN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASH|NGTON,

Appeilant. FILED: Agril 17, 2017

§ ` No. 74558-1-1
-Respondent, § DIV|S|ON ONE
v. l
NATHAN LEA ANDERSON, § uNPuBLlsHEo
l
)

Cox, J. - Nathan Anderson challenges the constitutionality of the
mandatory victim penalty assessment as applied to him. Because this court has
repeatedly rejected this argument against the mandatory fee, we affirm. We also
deny any request for an award of appellate costs to the State.

A jury convicted Anderson of domestic violence offensesl The trial court
waived all nonmandatory legal financial obligations but imposed a mandatory
$500 victim penalty assessment

Anderson appeals.

N|ANDATOR‘Y LEGAL F|NANCIAL OBLlGATlONS

Anderson claims, for the Hrst time on appeal, that the mandatory victim
penalty assessment (VPA) under RCW 7.68.035 violates substantive due
process when a court imposes it on an indigent defendant This argument is

premature

No. 74558~1-|/2

“The due process clause protects an indigent offender from incarceration
based solely on inability to pay court ordered fees.f’1 But “[a] preenforcement
constitutional challenge to the mandatory DNA fee statute is ripe for review on
the merits if the issue raised is primarily |egal, does not require further factual
development and the challenged action is t"inal.”2 Thus, “[a] constitutional
challenge to the DNA fee statute is not ripe for review until the State attempts to
enforce collection of the fee. ‘[T]he relevant question is whether the defendant is

indigent at the time the State attempts to sanction the defendant for failure to

pay'm3

¢H'

Likewise, imposition of the [victim] penalty assessment, standing alone,
is not enough to raise constitutional concerns.'"4 And a defendant cannot show
that an as~applied substantive due process claim is manifest constitutional error
until the State seeks to enforce collection of the fee or impose a sanction for

failure to pay.5

 

1 state v. sheiten, 194 Wn. App.‘eso, 670, 378 P.3d 230 (2016), review
denied, 187 wn.2d 1002 (2017).

2 ld.

__~

3 LJ_. at 672-73 (emphasis omitted) (second alteration in original) (quoting
State v. Sanchez Valencial 169 Wn.2d 782, 789, 239 P.3d 1059 (2010)).

4 ga at 672 (quoting State v. Cur[y, 118 Wn.2d 911, 917 n.3, 829 P.2d 166
(1992)). ' » '

5 id et 672-73.

No. 74558-1-|!3

This court`square|y addressed Anderson's argument in State v. Shelton,6
holding that the defendant was procedurally barred from raising a substantive
clue process challenge to the DNA fees statute for the first time on appea|. This
court held that the defendants claim was not ripe until the State sought to
enforce collection or sanctioned the defendant for failing to pay.7 This court also
held the defendant lacked standing because he could not show harm until the
State sought to enforce the fee.B

As in §LM, nothing in this record shows that either the State has
attempted to collect the VPA or that it has imposed sanctions for failure to pay.~”’
Thus, Anderson’s as-applied substantive due process challenge is not ripe for
review.

N|oreover, Anderson lacks standing because he cannot show harm until
the State seeks to enforce collection of the VF°A.10 And RAP 2.5(a)(3) bars
Anderson from raising his challenge for the first time on appeal because the

claimed error is not “manifest" “[u]nti| the State seeks to enforce collection of the .

 

6 194 vvn. App. 660, 674, 378 P.3d 230 (2016), review denied, 187 Wn.2d
1002 (2017). -

1 ig et 672-73.
3 id_. et 674 n.s.
9 §§ i_dg ai 673`.

10 ig_; e1674 n.s.

Ne. 74558-14/4

. . fee or impose a sanction for failure to pay.”11 Additionaliyl the record contains
rio information about Anderson’s future ability to pay the VPA.

When the court declines to address the merits of the challenge, it must
considerthe risk of hardship to the parties12 However, “the potential risk of
hardship does not justify review before the relevant facts are fully developed.”13
This record contains no facts regarding Anderson‘s future ability to pay.

Accordingly, we decline to review Anderson’s constitutional cha|ienge to
the VPA.

APPELLATE COSTS

Anderson asks that no costs be awarded on appeal We decline to award
any such costs on appeal.

When a trial court makes a finding of indigency, that finding continues
throughout review “unless the commissioner or clerk determines by a
preponderance of the evidence that the offender’s financial circumstances have

significantly improved since the last determination of indigency."14

 

11 |c|_. at 675; see also State v. Stoddardl 192 Wn. App. 222, 228-29, 366
P.3d 474 (2016).

12 §h_elt_c_),rl, 194 Wn. App. at 670.
13 l§; 31672.

14 RAP 14.2; see also State v. Sinclair, 192 Wn. App. 380, 393, 367 P.3d
612, review denied, 185 Wn.2d 1034 (2016).

No. 74558-1-|!5

Here, the trial court found Anderson indigent. There is no evidence
indicating significant improvement in Anderson's financial circumstances since
the trial court’s finding. According|y, there is no basis to award costs on appeal.
We decline to do so.

We affirm the judgment and sentence We deny the award of costs of

appeal to the State. :
gsa ,_r.

 

WE CONCUR:

mead
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