                                                                                                  Filed
                                                                                            Washington State
                                                                                            Court of Appeals
                                                                                             Division Two

                                                                                               July 23, 2019




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            DIVISION II
 STATE OF WASHINGTON,                                                   No. 50735-8-II

                                  Respondent,                    UNPUBLISHED OPINION

           v.

 SHEDRICK NELSON, JR.,

                                  Appellant.

          GLASGOW, J. — Shedrick Nelson Jr. pleaded guilty to attempting to elude a pursuing

police vehicle and driving under the influence. He appeals only the portion of his judgment and

sentence that imposed mandatory legal financial obligations (LFOs), specifically the criminal

filing fee, the DNA collection fee, and the crime victim assessment, as well as interest on these

LFOs. He argues that the trial court should not have imposed these LFOs without first

determining whether he would be able to pay them. He also argues that imposing the LFOs in

his case violated substantive due process. He also filed a statement of additional grounds for

review.

          We affirm in part, reverse in part, and remand for the trial court to strike the criminal

filing fee and the accrual of any interest on these non-restitution LFOs. We affirm the DNA fee

and the crime victim assessment. Finally, Nelson did not raise any issues in his statement of

additional grounds that warrant reversal.
No. 50735-8-II


                                                FACTS

          During a routine patrol, Pierce County Sheriff’s Deputy J. Mills observed Nelson driving

erratically, swerving back and forth without his lights on. Mills attempted to pull Nelson over,

but he fled. Mills eventually disabled Nelson’s vehicle and arrested him.

          The State charged Nelson with attempting to elude a pursuing police vehicle and driving

under the influence. Nelson pleaded guilty as charged.

          As part of Nelson’s sentence on the eluding conviction, the trial court imposed a total of

$800 in mandatory LFOs: a $500 crime victim penalty assessment, a $200 criminal filing fee,

and a $100 DNA collection fee.1 The trial court found Nelson indigent for the purposes of

appeal.

          Nelson now appeals the portion of his judgment and sentence imposing the mandatory

LFOs.

                                             ANALYSIS

          Nelson argues that the trial court erred when it ordered him to pay the crime victim

penalty assessment, the criminal filing fee, and the DNA collection fee. The State concedes that

in light of 2018 amendments to the laws governing LFOs, we should strike the criminal filing fee

and any interest on non-restitution LFOs. But the State maintains that the trial court properly

imposed the crime victim penalty assessment and the DNA collection fee. We agree with the

State.




1
 The trial court also imposed a mandatory minimum fine of $1620.50 related to the DUI
conviction.

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No. 50735-8-II


       After Nelson filed his appeal, the legislature amended the laws governing the mandatory

LFOs at issue in this case. See generally LAWS OF 2018, ch. 269. In State v. Ramirez, 191

Wn.2d 732, 747-50, 426 P.3d 714 (2018), our Supreme Court held that these amendments apply

prospectively to indigent defendants whose direct appeal is not yet final. Under the amended

statute, the criminal filing fee may no longer be imposed if the defendant is indigent. LAWS OF

2018, ch. 269, § 17(2)(h). In addition, under the new law, interest can no longer accrue on non-

restitution LFOs. LAWS OF 2018, ch. 269, § 1(1). As a result, the State correctly conceded that

the criminal filing fee and interest on non-restitution LFOs should be stricken.

       In contrast, the crime victim penalty assessment and the DNA collection fee cannot be

waived or stricken because of indigency. RCW 7.68.035(1)(a) provides that the penalty

assessment “shall be imposed” for every criminal conviction. “The assessment shall be in

addition to any other penalty or fine imposed by law and shall be five hundred dollars for each

case or cause of action that includes one or more convictions of a felony or gross misdemeanor.”

RCW 7.68.035(1)(a). “An offender being indigent . . . is not grounds for failing to impose

restitution or the crime victim penalty assessment under RCW 7.68.035.” RCW 9.94A.760(1).

       In addition, RCW 43.43.7541 provides that the sentencing court “must include a fee of

one hundred dollars unless the state has previously collected the offender’s DNA as a result of a

prior conviction.”

       Washington courts have consistently affirmed the mandatory nature of the crime victim

penalty assessment and the DNA collection fee regardless of a defendant’s ability to pay. E.g.,

State v. Mathers, 193 Wn. App. 913, 918-19, 376 P.3d 1163 (2016); State v. Seward, 196 Wn.

App. 579, 587, 384 P.3d 620 (2016). Nelson cites State v. Blazina, 182 Wn.2d 827, 839, 344


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No. 50735-8-II


P.3d 680 (2015), in which our Supreme Court held that the imposition of discretionary LFOs

required an individualized inquiry into the defendant’s ability to pay. Nelson concedes that

Blazina “explicitly applies only to discretionary LFOs,” but argues “its reasoning applies equally

to all LFOs, including mandatory LFOs.” Br. of Appellant at 12. However, we have already

held that Blazina does not apply to mandatory LFOs, and the imposition of these mandatory

LFOs was proper without an analysis of a defendant’s present or future ability to pay. Mathers,

193 Wn. App. at 918-19, 921, 928-29.

       Nelson also relies on RCW 10.01.160(3), which requires sentencing courts to take

account of a defendant’s financial resources and the nature of the burden that payment of costs

would impose. He argues RCW 10.01.160(3) should apply to mandatory LFOs, including the

DNA collection fee and the crime victim assessment. But we have already rejected this

argument. E.g., Mathers, 193 Wn. App. at 918-21; Seward, 196 Wn. App. at 587. RCW

10.01.160 applies to discretionary, not mandatory, LFOs. Mathers, 193 Wn. App. at 919-21.

       Nelson argues that the imposition of mandatory LFOs on indigent defendants violates

substantive due process. But, again, we have previously held that the imposition of the crime

victim penalty assessment and the DNA collection fee do not violate substantive due process.

Mathers, 193 Wn. App. at 927-29; Seward, 196 Wn. App. at 583-86.2

       We conclude that the trial court did not err when it imposed the mandatory crime victim

penalty assessment. And Nelson has not presented any evidence that his DNA had been



2
  The State argues we should affirm the trial court’s imposition of the mandatory DUI fine.
However, Nelson did not assign error to the imposition of this fine. Because Nelson did not
assign error to the DUI fine, or make any argument in his brief specifically about the fine, this
fine is not at issue on appeal.

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No. 50735-8-II


previously collected and was on file with the State. This appears to be Nelson’s first felony

conviction. Thus, we also conclude that the trial court did not err when it imposed the DNA

collection fee.

        Nelson asks us to exercise our discretion to deny any appellate costs. The State has

represented that it does not intend to seek appellate costs in this case. Based on the State’s

representation, we deny appellate costs.

        Finally, Nelson submitted a statement of additional grounds. He provides some

additional facts but he has not stated any additional ground on which we may grant him relief.

                                           CONCLUSION

        We affirm the imposition of the crime victim penalty assessment and the DNA collection

fee, but reverse the imposition of the criminal filing fee, and remand for the trial court to strike

the filing fee and the provision imposing interest on non-restitution LFOs.

        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.



                                                      Glasgow, J.
 We concur:



 Worswick, P.J.




 Cruser, J.


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