                                                                        FILED
                                                                         AITEALSPAV I
                                                               cntiRT CF
                                                                SIATE
                                                                2ü11111 -5       6:51
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                                    No. 74547-6-1

                     Respondent,                        DIVISION ONE

             V.

VINOD CHANDRA RAM,                                      UNPUBLISHED

                     Appellant.                      FILED: June 5, 2017



       Cox, J. — Vinod Ram challenges the constitutionality of the mandatory

deoxyribonucleic acid (DNA)collection fee and victim penalty assessment as

applied to him. These arguments are neither ripe for review nor do they

constitute manifest constitutional error under RAP 2.5(a). We also deny any

request for an award of appellate costs to the State.

       Ram makes two additional arguments in his Statement of Additional

Grounds for Review. Because the police officer properly advised Ram of his

rights in accordance with Miranda v. Arizona,1 his first argument fails. Ram failed

to preserve for review his second argument regarding severing a prior identity

theft conviction from this trial. We affirm.

       A jury convicted Ram of domestic violence offenses. The trial court

waived all nonmandatory legal financial obligations but imposed two mandatory

obligations—the $500 victim penalty assessment and $100 DNA collection fee.



       1 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 74547-6-1/2


       Ram appeals.

                 MANDATORY LEGAL FINANCIAL OBLIGATIONS

       Ram claims, for the first time on appeal, that the mandatory victim penalty

assessment(VPA) under ROW 7.68.035 and the DNA collection fee under ROW

43.43.7541 violate substantive due process when a court imposes them on an

indigent defendant. This argument is premature.

       We squarely addressed Ram's argument in State v. Shelton.2 "The due

process clause protects an indigent offender from incarceration based solely on

inability to pay court ordered fees."3 But "[a] preenforcement constitutional

challenge to the mandatory [legal financial obligations] is ripe for review on the

merits if the issue raised is primarily legal, does not require further factual

development, and the challenged action is final." Thus,"constitutional

challenge[s]to the DNA fee [and VPA]statute[s][are] not ripe for review until the

State attempts to enforce collection of the fee[s]. '[T]he relevant question is

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

defendant for failure to pay.'"5




           Wn. App. 660, 674, 378 P.3d 230 (2016), review denied, 187 Wn.2d
       2 194
1002(2017).

       3 Id. at 670.


       4   Id.

       5 Id. at 672-73 (emphasis omitted)(some alterations in original) (quoting
State v. Valencia, 169 Wn.2d 782, 789, 239 P.3d 1059 (2010)).


                                           2
 No. 74547-6-1/3


        Moreover, a defendant cannot show that an as-applied substantive due

 process claim is manifest constitutional error until the State seeks to enforce

collection of the fees or impose a sanction for failure to pay.6

       As in Shelton, nothing in this record shows either that the State has

• attempted to collect the VPA or the DNA collection fee or that it has imposed

sanctions for failure to pay.7 Thus, Ram's as-applied substantive due process

challenges are not ripe for review.

        Moreover, RAP 2.5(a)(3) bars Ram from raising his challenge for the first

time on appeal because the claimed error is not "manifest" "[u]ntil the State seeks

to enforce collection of the. . . fee or impose a sanction for failure to pay."8 The

record contains no information about Ram's future ability to pay the DNA

collection fee and the VPA.

       Additionally, the court must consider the risk of hardship to the parties if it

declines to address the merits of the challenge.° However,"the potential risk of

 hardship does not justify review before the relevant facts are fully developed."10

This record contains no facts regarding Ram's future ability to pay.




       6   Id.

       7 See     id. at 673.

       Id. at 675; see also State v. Stoddard, 192 Wn. App. 222, 228-29, 366
       8
P.3d 474 (2016).

       9   Id. at 670.

        10 Id. at 672.


                                          3
No. 74547-6-1/4


       Accordingly, we decline to review Ram's constitutional challenge to the

DNA collection fee and VPA.

                               APPELLATE COSTS

       Ram asks that no costs be awarded on appeal. We decline to award any

such costs to the State on appeal.

       When a trial court makes a finding of indigency, that finding continues

throughout review unless the commissioner or clerk determines by a

preponderance of the evidence that the offender's financial circumstances have

significantly improved since the last determination of indigency.11

       Here, the trial court found Ram indigent. There is no evidence indicating

significant improvement in Ram's financial circumstances since the trial court's

finding. Accordingly, there is no basis to award costs on appeal to the State. We

decline to do so.

                    STATEMENT OF ADDITIONAL GROUNDS

       Ram raises two additional ground for review. We disagree with each

argument.

                                   Miranda Rights

       Ram argues that the police failed to "fully 'Mirandize' him." We disagree.

       Miranda v. Arizona12 "established a conclusive presumption that all

confessions or admissions made during a custodial interrogation are compelled


       11RAP 14.2; see also State v. Sinclair, 192 Wn. App. 380, 393, 367 P.3d
612, review denied, 185 Wn.2d 1034(2016).

       12 384   U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


                                          4
No. 74547-6-1/5


in violation of the Fifth Amendment's privilege against self-incrimination."13 Thus,

the State may not present as evidence a defendant's statement made during a

custodial interrogation unless the defendant was informed of and waived certain

rights.14

       Prior to any questioning during a custodial interrogation, a person must be

warned

       that he has the right to remain silent, that anything he says can be
       used against him in a court of law, that he has the right to the
       presence of an attorney, and that if he cannot afford an attorney
       one will be appointed for him prior to any questioning if he so
       desires.[161

       A person may waive these rights, "provided the waiver is made voluntarily,

knowingly and intelligently."16

       We defer to the trial court's findings of fact but review de novo its legal

conclusions from those findings.17

       Here, Ram challenges how Sergeant Michel Bos advised him of his rights.

He specifically argues that Sergeant Bos did not advise him of his right to remain

silent. The record shows otherwise.




       13   In re Pers. Restraint of Cross, 180 Wn.2d 664, 682, 327 P.3d 660
(2014).

       14   Miranda, 384 U.S. at 444.

       15   Id. at 479.

       16   Id. at 444

       17   Cross, 180 Wn.2d at 681.


                                          5
No. 74547-6-1/6


      The trial court held a CrR 3.5 hearing to determine the admissibility of

Ram's statements to police surrounding his arrest. Sergeant Bos testified about

his participation in the case and his interaction with Ram. The police placed Ram

under arrest, and Sergeant Bos advised him of his rights. Sergeant Bos

specifically read the warning from a "standard card ... issued by the Washington

State Criminal Justice Commission."18 He read the following to Ram:

             "You have the right to remain silent. Anything you say can
      be used against you in a court of law. You have the right at this
      time to talk to a lawyer and have him present with you while you are
      being questioned. If you cannot afford to hire a lawyer, one will be
      appointed to represent you before questioning, if you wish. You
      can decide at any time to exercise these rights and not answer any
      questions or make any statements."[191

      Sergeant Bos then testified that the card contained the following

information regarding waiver of these rights:

      "After the warning, and in order to secure a waiver, the following
      questions should be asked and an affirmative reply secured to each
      question: 1. Do you understand each of these rights I have
      explained to you? ... 2. Having these rights in mind, do you wish
      to talk to me?"[201

      Sergeant Bos also read the above information to Ram but did not read the

last question because he "had no reason... to question [Ram]about what

happened." The trial court concluded that "the Miranda rights that were

communicated to Mr. Ram are complete and are accurate."




       18   Report of Proceedings Vol. 1 (October 27, 2015) at 58.

       18   Id. at 59.

      28    Id.(emphasis added).


                                          6
No. 74547-6-1/7


         Because Sergeant Bos advised Ram of his rights in accordance with

Miranda, Ram's argument fails. That Sergeant Bos did not fully ask the

questions that followed the warning is irrelevant to the proper analysis of this

claim.

                                      Severance

         Ram argues that the trial court abused its discretion by denying his motion

to sever the charges. We disagree.

         Under CrR 4.3(a), joining offenses in one trial is allowed where the

charged offenses "1(1)[a]re of the same or similar character, even if not part of a

single scheme or plan; or(2)[a]re based on the same conduct or on a series of

acts connected together or constituting parts of a single scheme or plan.'"21 But

offenses properly joined under this rule may be severed if the trial court

"determines that severance will promote a fair determination of the defendant's

guilt or innocence of each offense.'"22

         Pretrial, Ram moved to sever from this trial four prior charges: felony

harassment, two counts of witness intimidation, and a court order violation. He

did not mention his prior identity theft trial in the motion.

         The trial court heard and denied the motion. After the State rested, Ram

renewed his motion to sever in order to preserve the issue as argued. The trial

court again denied the motion.

      21 State v. Bluford, No. 93668-4, slip op. at 11 (Wash, May 4, 2017),
http://www.courts.wa.gov/opinions/pdf/936684.pdf(quoting CrR 4.3(a)).

         22 State   v. Bvthrow, 114 Wn.2d 713, 717, 790 P.2d 154(1990)(quoting
CrR 4.4(b)).


                                           7
No. 74547-6-1/8


       Here, Ram makes a new argument. He focuses on his prior identity theft

trial. He further argues that the State "needed to tie the motive to intimidate [the

witness] to the identity thefts in order to add strength to each of the counts. . . ."

This argument was not made in his motions to sever. Thus, we do not consider it

further.23

       We affirm the judgment and sentence. We deny any award of costs of

appeal to the State.
                                                                        ,
WE CONCUR:



  f.;close I
  .




       23 See   RAP 2.5(a).

                                           8
