                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                          February 4, 2020
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                               No. 52040-1-II

                                Respondent,

        v.

 SEAN ALLEN FORSMAN,                                          UNPUBLISHED OPINION

                                Appellant.

       WORSWICK, J. — Sean Forsman appeals from the $200 criminal filing fee and $100 DNA

(deoxyribonucleic acid) collection fee imposed as legal financial obligations following

resentencing for his unlawful delivery of a controlled substance convictions. The State concedes

that remand is required to strike the criminal filing fee, but argues that Forsman has the burden of

showing that his DNA was previously collected as part of a prior conviction. We accept the

State’s concession as to the criminal filing fee, but we hold that the State has the burden to show

that Forsman’s DNA was not previously collected. Thus, we remand for the trial court to strike

the criminal filing fee and direct the sentencing court to reconsider the DNA collection fee

consistent with this opinion.

                                              FACTS

       In 2013, Sean Forsman was convicted of three counts of unlawful delivery of a controlled

substance with school zone sentence enhancements. We affirmed his convictions on direct

appeal. Our Supreme Court later granted in part Forsman’s personal restraint petition and
No. 52040-1-II


remanded to the trial court for resentencing. He was resentenced in 2016. Forsman appealed

from his 2016 resentencing hearing, and we remanded for a full resentencing hearing.

       The trial court held another resentencing hearing on June 8, 2018. At the resentencing

hearing, the trial court stated that it would impose only mandatory legal financial obligations. It

thereafter imposed legal financial obligations that included a $200 criminal filing fee and a $100

DNA collection fee. Forsman appeals from the imposition of those legal financial obligations.

                                           ANALYSIS

       RCW 36.18.020(2)(h)1 prohibits a trial court from imposing a $200 criminal filing fee on

indigent defendants. The State concedes that Forsman is indigent and that the trial court erred by

imposing the criminal filing fee. We accept the State’s concession.

       RCW 43.43.75412 prohibits a trial court from imposing a $100 DNA collection fee if the

State has “previously collected the offender’s DNA as a result of a prior conviction.” The State

acknowledges that Forsman has prior Washington felony convictions, but argues that we should

deny Forsman relief from the $100 DNA collection fee because he did not demonstrate at

sentencing that his DNA has been previously collected as a result of those convictions. We

disagree.

       RCW 43.43.751(1)(a) requires the State to collect a DNA sample from every adult or

juvenile convicted of a felony. Because Forsman has prior felony convictions, there is a



1
 RCW 36.18.020 was recently amended and became effective on June 7, 2018, one day before
Forsman’s resentencing hearing. LAWS OF 2018, ch. 269, § 17; see also State v. Ramirez, 191
Wn.2d 732, 426 P.3d 714 (2018).
2
 RCW 43.43.7541 was recently amended and became effective on June 7, 2018. LAWS OF 2018,
ch. 269, § 18.


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No. 52040-1-II


presumption that the State has previously collected his DNA as statutorily required. State v.

Houck, 9 Wn. App. 2d 636, 651 n. 4, 446 P.3d 646 (2019). But because the record does not

show that Forsman’s DNA was collected, we remand for the trial court to make this

determination. On remand, the State has the burden of showing that Forsman’s DNA has not

been previously collected as a result of his prior convictions. Houck, 9 Wn. App. 2d at 651. If

the State cannot meet this burden, the trial court must strike the DNA collection fee. Houck, 9

Wn. App. 2d at 651.

        We remand for the trial court to strike Forsman’s criminal filing fee. On remand, the trial

court shall also strike Forsman’s DNA collection fee unless the State can show that his DNA has

not been previously collected as a result of prior convictions.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                                       Worswick, J.
 We concur:



 Lee, A.C.J.




 Cruser, J.




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