 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
                                                No. 75162-0-1
                    Respondent,
                                                DIVISION ONE
             V.
                                                UNPUBLISHED OPINION
TOMMIE BERNARD LEWIS,

                    Appellant.                  FILED: September 25, 2017

      TRICKEY, A.C.J. — Tommie Lewis appeals the trial court's imposition of a

victim penalty assessment (VPA) under RCW 7.68.035 after his conviction for

assault in the fourth degree. He claims for the first time on appeal that the VPA

violates his substantive due process rights because he is indigent. Because this

court has consistently held that pre-enforcement substantive due process

challenges to mandatory legal financial obligations (LF05) are not ripe for review,

we affirm.

                                     FACTS

      Tommie Lewis was charged with multiple domestic violence related crimes

and was ultimately convicted of assault in the fourth degree. At sentencing, the

court imposed the mandatory $500 VPA but waived all non-mandatory fees. Lewis

appeals.

                                   ANALYSIS

      Lewis argues that the VPA imposed by the trial court violates his substantive

due process rights because he has no current or future ability to pay. However,

we need not reach the merits of his argument as his claim is not ripe for review.

      This court has clearly established that challenges to mandatory fees are nof

ripe for review until the State attempts to collect. State v. Shelton, 194 Wn. App.
No. 75162-0-1 / 2

660, 672, 378 P. 3d 230 (2016), review denied, 187 Wn.2d 1002, 386 P.3d 1088

(2017); see also State v. Curry, 118 Wn.2d 911, 917 n.3, 829 P.2d 166 (1992);

State v. Lewis, 194 Wn. App. 709, 714-15, 379 P.3d 129, review denied, 186

Wn.2d 1025, 385 P.3d 118 (2016); State v. Tyler, 195 Wn. App. 385, 404 n.11,

382 P.3d 699 (2016).      Both Shelton and Curry address the argument that

mandatory fees statutes may result in unconstitutional imprisonment in the future

due to inability to pay. Shelton, 194 Wn. App. 672-73; Curry, 118 Wn.2d at 917.

The court determined that constitutional principles are only implicated at the time

of enforced collection, when an indigent defendant may face the alternatives of

payment or imprisonment. Curry, 118 Wn.2d at 917. "[T]tle relevant question is

whether the defendant is indigent at the time the State attempts to sanction the

defendant for failure to pay." Shelton, 194 Wn. App. at 672-73 (alteration in

original)(quoting State v. Sanchez Valencia, 169 Wn.2d 782, 789, 239 P.3d 1059

(2010)).     Pre-enforcement challenges       based    on future    possibility   of

unconstitutional imprisonment are unnecessary because sufficient safeguards

exist to protect indigent defendants. Curry, 118 Wn.2d at 917-18; Shelton, 194

Wn. App. at 671-72. Where the record does not demonstrate an attempt to collect

the debt or a sanction for failure to pay, further factual development is necessary

before the court will address the constitutional issue. See Shelton, 194 Wn. App.

at 672.

       Here, the record includes no evidence of the State attempting to collect or

sanctioning for failure to pay. Without evidence of enforcement, the challenge is

not ripe for review.


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No. 75162-0-1 / 3

       Lewis acknowledges that the Shelton court declined to review a nearly

identical challenge. He attempts to distinguish his case by arguing that his

substantive due process rights are being violated by the current operation of the

VPA, rather than a speculative future possibility of imprisonment as discussed in

Curry and Shelton. According to Lewis, this distinction makes further factual

development unnecessary for the court to reach the merits of his claim.

       Lewis's focus on the statute "as it operates at this moment" attempts to

circumvent the prerequisite of an enforcement action for his claim to be ripe for

review.1 However, he fails to provide evidence of a presently existing negative

impact to differentiate his claim from the many pre-enforcement challenges

rejected by this court. "The imposition of the penalty assessment, standing alone,

is not enough to raise constitutional concerns." Curry, 118 Wn.2d at 917 n.3.

Because constitutional principles are not implicated until the State attempts

enforcement of the fee, Lewis's substantive due process claim is not ripe for

review. Shelton, 194 Wn. App. at 674.

       Lewis also argues the court should address the merits of his claim as a

manifest constitutional error. A party may raise a "manifest error affecting a

constitutional right" for the first time on appeal. RAP 2.5(a)(3). "For a claim of

error to qualify as a claim of manifest error affecting a constitutional right, the

defendant must identify the constitutional error and show that it actually affected

his or her rights at trial." State v. Lamar, 180 Wn.2d 576, 583, 327 P.3d 46(2014).

The claimed error must have "practical and identifiable consequences." Lamar,



1 Appellant's Br. at 10
                                        3
No. 75162-0-1 / 4

180 Wn.2d 583. "If the facts necessary to adjudicate the claimed error are not in

the record on appeal, no actual prejudice is shown and the error is not manifest."

State v. McFarland, 127 Wn.2d 322, 333, 899 P.3d 1251 (1995).

          Shelton has established that these pre-enforcement claims are not manifest

constitutional error subject to review under RAP 2.5(a)(3). 194 Wn. App. at 674-

75. An appellant cannot show manifest error until the State has sought to enforce

collection of the fee or imposed sanctions for failure to pay. Shelton, 194 Wn. App.

at 674-75; see also Lewis, 194 Wn. App. at 715. Lewis disagrees with this

conclusion, claiming the trial court's imposition of the VPA resulted in the practical

and identifiable consequences of "unjustly burdening Lewis with criminal debt

without any rational basis to conclude that the [S]tate will ever recoup this

amount."2 Again, Lewis fails to identify how this burden affects his rights, absent

an attempt to collect the debt. The mere imposition of the penalty assessment is

not enough. Curry, 118 Wn.2d at 917 n.3.

          Finally, Lewis attempts to show manifest constitutional error by arguing the

VPA runs afoul of the constitutional limits on the imposition and collection of LF0s.

Limitations have been imposed on discretionary LFOs to protect an indigent

defendant's constitutional rights. See State v. Barklind, 87 Wn.2d 814, 817, 557

P.2d 314 (1976). Among the limitations, repayment must not be mandatory,

repayment may be imposed only on convicted defendants, repayment may only

be ordered if the defendant is or will be able to pay, and the financial resources of




2   Appellant's Br. at 12.
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No. 75162-0-1/ 5

the defendant must be considered. State v. Duncan, 185 Wn.2d 430, 436, 374

P.3d 83(2016)(quoting Curry, 118 Wn.2d at 915-16).

       These limitations were established only with respect to discretionary LF0s.

See Barklind, 87 Wn.2d at 815-16 (repayment of a portion of expenses.for court-

appointed defense); Duncan, 185 Wn.2d at 435 (court ordered defendant to pay

restitution, costs, assessments,fines,$50 per day toward cost of incarceration and

costs of his medical care). Lewis provides no authority applying the constitutional

requirements of discretionary LFOs to mandatory LF05, like the VPA.

Furthermore, the Washington Supreme Court has explicitly held that the current

sentencing scheme has sufficient safeguards to prevent imprisonment of indigent

defendants for inability to pay a VPA. Curry, 118 Wn.2d at 917-18. As a result,

Lewis cannot show a manifest constitutional error requiring review under RAP

2.5(a)(3).

       Lewis requests this court exercise its discretion to review under RAP 2.5(a).

Appellate courts are not required to refuse review of errors raised for the first time

on appeal. Duncan, 185 Wn.2d at 437. Because the claim is not ripe, there is no

manifest constitutional error, and no showing of hardship other than the mere

existence of the VPA, we decline to reach the merits.

       Affirmed.



WE CONCUR:




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