IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                      )
                                          )       No. 75579-0-1
                                                                                          (7)
                       Respondent,        )                                              f-
                                          )       DIVISION ONE                          >
          v.                              )                                       rn    rrl
                                                                                  -0    CD
                                          )
DARYL LAMAR BERRY,                        )       UNPUBLISHED OPINION                            F:
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                                          )                                               >
                       Appellant.         )       FILED: September 25, 2017w            =r-
                                                                                        c-,v)
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                                                                                        c:D--
       PER CURIAM. Daryl Berry appeals the victim penalty assessment(VA)

imposed following his conviction for first degree criminal trespass. For the first

time on appeal, he contends the statute authorizing the mandatory VPA

assessment is unconstitutional as applied to defendants who do not have the

ability or likely future ability to pay them. He concedes this 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, 386 P.3d 1088 (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). We adhere to our

decision in Shelton.

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

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

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




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. 75579-0-1/2


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 Berry's claim under RAP 2.5(a) in the

absence of manifest constitutional error, the claim is not ripe and Berry has not

demonstrated 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 Berry'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, 396 P.3d 349

(2017)(imposition of VPA, DNA collection fee, and criminal filing fee prior to any

individualized determination of ability to pay is rationally related to a legitimate

state interest).

       Affirmed.

                                  For the court:




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 672-73(RAP 2.5(a)(3) bars challenge to VPA, DNA fee and filing fee for the
first time on appeal because the claimed error is not "manifest" "Ninth the State attempts
to enforce collection of the. . . fee or impose sanctions for failure to pay."); accord
Lewis, 194 Wn. App. at 715.

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