                                                                  LED
                                                         COURT OF APPEALS 51V I
                                                          STATE OF WAS1-illtrITCH
                                                          2011 OCT -2 l'1112: 38




      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


STATE OF WASHINGTON,
                                                   No. 75445-9-1
                     Respondent,
                                                   DIVISION ONE
       V.

HASSEN JAMES,                                      UNPUBLISHED OPINION

                     Appellant.                    FILED: October 2, 2017

       SPEARMAN, J. — A defendant's waiver of his jury trial right is valid if it is a
personal expression of waiver that is knowing, intelligent, and voluntary. Hassen

James indicated his desire to proceed with a bench trial orally and in writing

before the trial court informed him that he had the right to twelve jurors selected

at random. Because James did not object to this characterization of the jury

selection process, and cannot show that it had practical and identifiable

consequences in the proceeding, we decline to review this issue. We affirm.

                                       FACTS

       Hassen James faced trial on charges of second degree assault, unlawful

imprisonment, and witness tampering. At the outset of trial, James's attorney

informed the court that the defendant intended to waive his right to a jury trial.

While James was clear that "he does wish to proceed without a jury," he also

resisted signing a jury waiver. Verbatim Report of Proceedings(VRP) at 7. The
No. 75445-9-1/2

court informed James that "the law requires that I obtain a written jury waiver

from you. So if you don't sign it, that's fine. But we're going to have a jury trial."

Id. Eventually, James agreed to sign the jury waiver. The waiver stated:

           My attorney and I have discussed my right to a jury trial. I
       understand that I have the right to have a jury of 12 decide my
       case. I further understand that all 12 jurors would have to
       agree that the elements of the crime(s) with which I have been
       charged have been proved beyond a reasonable doubt before
       I could be found guilty. After discussing this right with my
       attorney, I have decided to waive my right to a jury trial.

Clerk's Papers(CP) at 11. After receiving the signed waiver, the court engaged

in the following colloquy:

       THE COURT: Okay. Mr. James, I've received this document
       entitled Waiver of Jury Trial. Is that your mark on it?
       THE DEFENDANT: Yes.
       THE COURT: Did you — do you understand everything contained in
       this document?
       THE DEFENDANT: Yes.
       THE COURT: Do you know what a jury trial is?
       THE DEFENDANT: Yes.
       THE COURT: Do you understand, just to make sure, a jury trial
       means that 12 citizens of King County selected at random would
       decide whether the prosecutor has proved you guilty beyond a
       reasonable doubt? Do you understand that?
       THE DEFENDANT: Yes.
       THE COURT: Have you ever had a jury trial before?
       THE DEFENDANT: Yes.
       THE COURT: Okay. So you do know. You wish to give up your
       right to a jury trial?
       THE DEFENDANT: Yes.
       THE COURT: And you understand that's a final decision, you will
       not be able to change your mind in the future?
       THE DEFENDANT: Yes.
       THE COURT: Ifinding a knowing, voluntary and intelligent waiver
       of the right to a jury trial and this matter will proceed to the bench.

VRP at 8-9.




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No. 75445-9-1/3

       James was convicted of unlawful imprisonment—domestic violence and

fourth degree assault—domestic violence. The court ordered that he pay a $500

Victim's Penalty Assessment(VPA)and a $100 DNA collection fee.

       James appeals.

                                      DISCUSSION

       James argues that his jury trial waiver was invalid because the trial court

represented that he had the right to twelve jurors selected at random. James

contends that this characterization was incorrect because the twelve jurors

chosen to decide his case would actually be selected through the voir dire

process and not at random. He argues that this alleged misinformation rendered

his waiver invalid. The State argues that James did not preserve this issue

because he did not object at trial.

       Generally, we do not consider arguments raised for the first time on

appeal. RAP 2.5(a). But a defendant may appeal a manifest error affecting a

constitutional right, even if the issue was not raised before the trial court. RAP

2.5(a)(3). The defendant must identify a constitutional error and show that it had

practical and identifiable consequences in the proceeding. State v. Roberts, 142

Wn.2d 471, 500, 14 P.3d 713(2000).

       Every criminal defendant has a constitutional right to a jury trial. State v.

Ramirez-Dominguez, 140 Wn. App. 233, 239, 165 P.3d 391 (2007)(citing City of

Pasco v. Mace, 98 Wn.2d 87,653 P.2d 618(1982)). Our review of a jury trial

waiver is de novo. Id. (citing State v. Treat, 109 Wn. App. 419, 427, 35 P.3d 1192

(2001)). A waiver is valid if the defendant acted knowingly, intelligently, and


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No. 75445-9-1/4

voluntarily. State v. Castillo-Murcia, 188 Wn. App. 539, 547, 354 P.3d 932

(2015), rev. denied, 184 Wn.2d 1027, 364 P.3d 120(2016). No colloquy or on-

the-record advice as to the consequences is required for waiver of a jury trial; all

that is required is a personal expression of waiver from the defendant. State v.

Stegall, 124 Wn.2d 719, 725, 881 P.2d 979(1994)(citing City of Bellevue v.

Acrey, 103 Wn.2d 203, 207-08, 691 P.2d 957(1984)).

       James raises an issue affecting a constitutional right, but does not show

that it had a practical and identifiable consequence on the proceeding. There is

no evidence that the trial court's characterization of the jury selection process

impacted James's decision to waive his jury right. To the contrary, James had

already signed a written waiver of his jury right indicating that he understood the

nature of the right. And he already informed the judge that he understood the

waiver document. Because James cannot show that his asserted error impacted

his decision to waive his jury right, he cannot show that the error had practical

and identifiable consequences on the proceeding. We decline to review this issue

under RAP 2.5(a)(3).

Mandatory Fees

       For the first time on appeal, James argues that the court unconstitutionally

imposed a mandatory $100 DNA collection fee and $500 VPA. James contends

that these mandatory fees violate his substantive due process rights because

they are not rationally related to a legitimate state interest.

       We disagree. First, in State v. Shelton, 194 Wn. App. 660, 675, 378 P.3d

230(2016), rev. denied, 187 Wn.2d 1002, 386 P.3d 1088 (2017), we held that


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No. 75445-9-1/5

this type of challenge is not ripe for review until the State attempts to collect the

fee. There is no evidence in the record indicating that the State has sought to

collect this debt, so we decline to review the issue.

       Even if James' claim were ripe, this court has expressly rejected his due

process arguments. In State v. Lewis, 194 Wn. App. 709, 720, 379 P.3d 129, rev.

denied, 186 Wn.2d 1025, 385 P.3d 118 (2016), we held that the DNA collection

fee is rationally related to a legitimate state interest and therefore does not

violate substantive due process. In State v. Seward, 196 Wn. App. 579, 586, 384

P.3d 620 (2016), rev. denied, 188 Wn.2d 1015, 396 P.3d 349(2017), we reached

the same conclusion with respect to the VPA.

       Finally, we do not address James' arguments about costs on appeal

because the State does not intend to seek those costs.

       Affirmed.




WE CONCUR:
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