                                            O'? ::
                                            SiP              •
                                                                 9: 16
                                             201111,0; 2.0


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,         )
                             )                   No. 76406-3-1
              Respondent,    )
                             )                   DIVISION ONE
       v.                    )
                             )
JORGE DOMINGO BARRIOS-NUNEZ, )                   UNPUBLISHED OPINION
                             )
              Appellant.     )                   FILED: November 20, 2017


      PER CURIAM. Jorge Barrios-Nunez appeals the victim penalty

assessment(VPA)and the deoxyribonucleic acid (DNA)collection fee imposed

following his conviction for aggravated domestic violence assault in the second

degree. For the first time on appeal, he contends the statutes authorizing these

mandatory financial obligations are unconstitutional as applied to defendants who

do not have the ability or likely future ability to pay them. He concedes his

contention is not ripe for review under our decision in State v. Shelton, 194

Wn.App. 660, 671-74, 378 P.3d 230(2016), review denied, 187 Wn.2d 1002

(2017),1 but contends Shelton is wrongly decided because it relied on a

distinguishable case -- State v. Curry, 118 Wn.2d 911, 829 P.2d 166 (1992).

       Regardless of whether Curry is distinguishable in some respect, it still

supports Shelton's holding that an as applied substantive due process challenge




1 Accord State v. Lewis, 194 Wn. App. 709, 714-15, 379 P.3d 129, review denied, 186
Wn.2d 1025, 385 P.3d 118 (2016).
No. 76406-3-1/2



to financial obligations is not ripe until the State attempts to collect them. Curry,

118 Wn.2d at 917; see also State v. Curry, 62 Wn. App. 676, 681, 814 P.2d 1252

(1991), aff'd, 118 Wn.2d 911, 917, 829 P.2d 166 (1992). We adhere to that

holding in Shelton, which applies equally to DNA and VPA assessments/fees.2

We also adhere to Shelton's holding that as-applied due process claims cannot

constitute manifest constitutional error under RAP 2.5(a) until the State seeks to

enforce collection of the fees or imposes a sanction for failure to pay.3 While this

court does have discretion to review Barrios-Nunez's claim under RAP 2.5(a) in

the absence of manifest constitutional error, the claim is not ripe and Barrios-

Nunez has not shown that a significant risk of hardship will result from declining

review at this time. See Shelton, 194 Wn. App. at 670; State v. Cates, 183

Wn.2d 531, 536, 354 P.3d 832(2015).

        Finally, even if Barrios-Nunez's contentions were ripe for review and could

be raised for the first time on appeal, they would fail under State v. Seward, 196

Wn.App. 579, 384 P.3d 620 (2016), review denied, 188 Wn.2d 1015(2017)

(imposition of VPA, DNA collection fee, and criminal filing fee prior to any
    -




2 State v. Tyler, 195 Wn. App. 385, 404 n. 11, 382 P.3d 699(2016)(applying Shelton to
mandatory VPA and rejecting argument that RCW 10.01.160(3) applies to mandatory
financial obligations);
3 Shelton, at 674-75(RAP 2.5(a)(3) bars challenge to DNA fee for the first time on
appeal because the claimed error is not "manifest" "[u]ntil the State seeks to enforce
collection of the DNA fee or impose a sanction for failure to pay."); accord Lewis, 194
Wn. App. at 715.

                                           2
No. 76406-3-1/3



determination of ability to pay is rationally related to a legitimate state interest).

       Affirmed.

       For the Court:                                          Lcij j           C-Jr


                                                       (13e cS4ektz




                                            3
