      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                   No. 74157-8-1
                        Respondent,
        v.                                        DIVISION ONE

 STEPHEN EDWARD HUTSELL,                          UNPUBLISHED OPINION               ^
                       Appellant.                 FILED: January 17, 2017


       Leach, J. — Stephen Hutsell challenges the trial court's imposition of the

mandatory $100 deoxyribonucleic acid (DNA) testing fee required by

RCW 43.43.7541. He claims the fee, as applied to a repeat felony offender,

violates equal protection. Our recent opinion in State v. Lewis1 considered and

rejected the same argument. We affirm.

                                        FACTS


       On May 22, 2015, the State charged Hutsell with possession of a controlled

substance (heroin).     He pleaded guilty as charged.        Because the State had

Hutsell's DNA on file as a result of a prior conviction, the trial court did not require

Hutsell to undergo a DNA test. It did, however, impose a $100 DNA testing fee.

At sentencing, Hutsell challenged the imposition of the DNA testing fee.

Concluding that a statute required the fee, the court rejected Hutsell's challenge.

Hutsell appeals.


       1 194 Wn. App. 709, 379 P.3d 129 (2016), review denied. No. 93420-7
(Wash. Dec. 7, 2016).
No. 74157-8-1/2




                                   ANALYSIS


        Hutsell claims that the mandatory DNA collection fee required by

RCW 43.43.7541, as applied to a repeat felony offender, violates equal protection.

But in Lewis, this court considered and rejected the same challenge. We held that

a rational basis exists to impose a fee for every felony sentence because the fee

funds both the cost of collection and the costs to operate and maintain the state

DNA database.2 Following Lewis, we affirm the trial court's imposition of the DNA

testing fee.

       Hutsell asks the court to waive his appellate costs. RAP 14.2 permits an

appellate court to bar an award of costs in a decision terminating review. Here,

the State states that it does not intend to request appellate costs. This makes

Hutsell's request moot, and we do not consider it.

                                 CONCLUSION


       We affirm.




WE CONCUR:




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       2 Lewis, 194 Wn. App. at 719-20 (citing State v. Johnson. 194 Wn. App.
304, 307-08, 374 P.3d 1206 (2016)).


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