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                                                                         FILED
                                                                       May 26, 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,                            )         No. 32900-3-111
                                                        )
                                  Respondent,           )
                                                        )
                  v.                                    )         UNPUBLISHED OPINION
                                                        )
        JOHN GLEN BURNLEY,                              )
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                                                        )
l                                 Appellant.            )
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l                 PENNELL, J. -    John Burnley appeals various aspects of a felony judgment and
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J       sentence imposed on him in Spokane County Superior Court. Finding no error, we

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        affirm.

                                                    FACTS

                  A jury found Mr. Burnley guilty of two felony counts of identity theft in the

        second degree and one gross misdemeanor count of making or possessing a motor vehicle
     No. 32900-3-III
     State v. Burnley


     theft tool. The sentencing court imposed $1,452.19 in legal financial obligations (LFOs ),

     including restitution of $652.19 to City Security and Investigation Services, a $500.00

     victim assessment fee, a $200.00 criminal filing fee, and a $100.00 deoxyribonucleic acid
1
     (DNA) collection fee. The court also ordered Mr. Burnley to submit a DNA sample.

     However, the judgment and sentence provided this latter requirement would "not apply if

     it is established that the Washington State Patrol crime laboratory already has a sample

     from the defendant for a qualifying offense." Clerk's Papers (CP) at 117.

                                             ANALYSIS

            Mr. Burnley challenges the superior court's imposition of LFOs. No objection was

     made in the trial court. Nevertheless, Mr. Burnley asks us to review this issue pursuant to




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     the recent Washington Supreme Court decision, State v. Blazina, 182 Wn.2d 827,344

     P.3d 680 (2015). Mr. Burnley's Blazina claim fails because the LFOs at issue here are

     mandatory rather than discretionary. 1 As such, these LFOs must be imposed regardless of

     the defendant's ability to pay. State v. Stoddard, 192 Wn. App. 222, 225, 366 P.3d 474

     (2016). In addition, Mr. Burnley agreed to the court-ordered restitution, thus the invited

     error doctrine precludes revisiting that order in the current context. Id.




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              Fees for victim assessment, criminal filing, and DNA collection are all mandated
     by statute. See RCW 7.68.035; RCW 36.18.020(2)(h); RCW 43.43.7541.



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1
No. 32900-3-III
State v. Burnley


       In addition to his general objection to the imposition of LFOs, Mr. Burnley makes

two specific objections to the imposition of a mandatory $100 DNA collection fee under

RCW 43.43.7541. First, Mr. Burnley argues that imposition of the DNA fee without

inquiry into ability to pay violates his substantive due process rights. Second, he argues

the mandatory DNA fee violates his equal protection rights by requiring first-time felony

offenders to pay the fee once, while requiring repeat felony offenders to pay the fee

multiple times. A successful challenge under either of these claims would require

reviewing facts outside the record. Generally, constitutional challenges to the imposition

of LFOs tum on a defendant's financial circumstances at the time of recoupment. See

State v. Blank, 131 Wn.2d 230, 241-42, 930 P.2d 1213 (1997). Because recoupment has

not begun, we cannot yet assess those circumstances. Additionally, standing to make an

equal protection claim requires proof that an individual was negatively impacted by a

classification scheme. See State v. Handley, 115 Wn.2d 275, 290-91, 796 P.2d 1266

(1990). No such proof is contained in the record. Based on the foregoing, we decline to

review Mr. Burnley's arguments for the first time on direct appeal under RAP 2.5(a).

Stoddard, 192 Wn. App. At 226-27.

      Finally, Mr. Burnley claims the superior court erred when it ordered DNA

collection under RCW 43.43.754. Mr. Burnley argues the order was improper because he


                                             3
No. 32900-3-111
State v. Burnley


had already submitted a DNA sample as a result of a prior conviction. We disagree. Mr.

Burnley's judgment and sentence form specifically provides that a subsequent DNA

sample need not be collected if a sample from a qualifying offense is already in the

possession of the Washington State Patrol crime laboratory. This is consistent with

Washington law. RCW 43.43.754(2). Particularly given there was no evidence before

the superior court regarding whether the state patrol in fact had a sample of Mr. Burnley's

DNA, the DNA collection order was appropriate.

      Based on the foregoing, Mr. Burnley's sentence is 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.
                                                                                              I
WE CONCUR:




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