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           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION ONE

STATE OF WASHINGTON,                              No. 72848-2-1


                           Respondent,

                  v.                              PUBLISHED OPINION

MICHAEL SHELTON,

                           Appellant.             FILED: June 20, 2016

       Schindler, J. — For the first time on appeal, Michael Shelton contends that as

applied to an indigent defendant, the statute that requires imposition of a mandatory

deoxyribonucleic acid (DNA) fee violates substantive due process. Shelton also

challenges the requirement to obtain a mental health evaluation. Because the

substantive due process challenge to the DNA fee statute is not ripe for review and is not

manifest constitutional error under RAP 2.5(a)(3), we affirm imposition of the DNAfee but

remand to determine whether the statutory requirements to order a mental health

evaluation are met.

       On October 23, 2014, the State filed an amended information charging Shelton

with assault in the second degree while armed with a deadly weapon. The State alleged

Shelton used a bottle to assault the victim, inflicting substantial bodily harm. A jury
No. 72848-2-1/2


convicted Shelton as charged of assault in the second degree while armed with a deadly

weapon.


       The court imposed a sentence of 15 months confinement and 18 months of

community custody. The court ordered Shelton to have no contact with the victim, submit

a DNA sample, and obtain a substance abuse evaluation and mental health evaluation

within 30 days of his release.

       The court ordered Shelton to pay the mandatory victim penalty assessment in the

amount of $500 and the mandatory DNA fee in the amount of $100. The court waived

the imposition of all discretionary financial obligations and interest on the mandatory $600

obligation. The judgment and sentence states, in pertinent part:

                                        IV. ORDER


       IT IS ORDERED that the defendant serve the determinate sentence and
       abide by the other terms set forth below.



       4.1    RESTITUTION, VICTIM ASSESSMENT, AND DNA FEE:

              [X] Restitution is not ordered.

              Defendant shall pay Victim Penalty Assessment in the amount of
              $500 (RCW 7.68.035 - mandatory).
              Defendant shall pay DNA collection fee in the amount of $100
              (RCW 43.43.7541 - mandatory).

       4.2    OTHER FINANCIAL OBLIGATIONS: . . .
              (a) [ ] $             , Court costs (RCW 9.94A.030, RCW
                      10.01.160); [X] Court costs are waived;

              (b) [ ] $             , Recoupment for attorney's fees to King County
                     Public Defense Programs (RCW 9.94A.030);
                     [X] Recoupment is waived;
No. 72848-2-1/3


               (e) [ ] $                , $100 State Crime Laboratory Fee (RCW
                       43.43.690); [X] Laboratory fee waived;

               (f) [ ] $               , Incarceration costs (RCW 9.94A.760(2)); [X]
                       Incarceration costs waived;




       4.3     PAYMENT SCHEDULE: The TOTAL FINANCIAL OBLIGATION
               set in this order is $600.
               Restitution may be added in the future. The payments shall be made
               to the King County Superior Court Clerk according to the rules of the
               Clerk and the following terms:
               ... [X] On a schedule established by the defendant's Community
               Corrections Officer or Department of Judicial Administration (DJA)
               Collections Officer. Financial obligations shall bear interest pursuant
               to RCW 10.82.090. The Defendant shall remain under the
               Court's jurisdiction to assure payment of financial obligations
               ... for crimes committed on or after 7/1/2000 ... until the
               obligation is completely satisfied. Pursuant to RCW 9.94A.7602,
               if the defendant is more than 30 days past due in payments, a notice
               of payroll deduction may be issued without further notice to the
               offender. Pursuant to RCW 9.94A.760(7)(b), the defendant shall
               report as directed by DJA and provide financial information as
               requested.
               [X] Court Clerk's trust fees are waived.
               [X] Interest is waived except with respect to restitution.

Substantive Due Process

       Shelton contends that as applied to an indigent defendant, the DNA fee statute,

RCW 43.43.7541, violates substantive due process.1

       A statute is presumed constitutional and a party bears the heavy burden of
establishing a statute unconstitutional beyond a reasonable doubt. Amunrud v. Bd. of
Appeals, 158 Wn.2d 208, 215, 143 P.3d 571 (2006). An as-applied challenge to the

constitutional validity of a statute is characterized by the "allegation that application ofthe


         1The legislature amended the DNA fee statute, RCW 43.43.7541, in 2015 to add the language,
"This fee shall not be imposed on juvenile offenders if the state has previously collected the juvenile
offender's DNA as a result ofa prior conviction." Laws of 2015, ch. 265, § 31. Because the remainder of
the statute did not change and the amendment does not affect our analysis, unless otherwise noted, we
refer to the current version of RCW 43.43.7541 throughout the opinion.
No. 72848-2-1/4



statute in the specific context" is unconstitutional. City of Redmond v. Moore, 151 Wn.2d

664, 668-69, 91 P.3d 875 (2004).

       The United States Constitution guarantees federal and state government will not

deprive an individual of "life, liberty, or property, without due process of law." U.S.

Const, amends. V, XIV, § 1. Article I, section 3 of the Washington Constitution

guarantees "[n]o person shall be deprived of life, liberty, or property, without due process

of law." In analyzing a substantive due process challenge, our Supreme Court has held

the Washington due process clause does not afford broader protection than the

Fourteenth Amendment. State v. McCormick, 166 Wn.2d 689, 699, 213 P.3d 32 (2009);

Amunrud, 158 Wn.2d at 216 n.2; In re Pers. Restraint of Dyer. 143 Wn.2d 384, 393-94,

20P.3d907(2001).

       Substantive due process protects against arbitrary and capricious government

action. Amunrud, 158 Wn.2d at 218-19. State interference with a fundamental right is

subject to strict scrutiny. Amunrud, 158 Wn.2d at 220. Shelton concedes that because

his challenge to the DNA statute does not affect a fundamental right, a rational basis

standard of review applies. Under that deferential standard, "the challenged law must be

rationally related to a legitimate state interest." Amunrud. 158 Wn.2d at 222.

DNA Fee Statute


       In 1989, the legislature enacted a statute to use DNA identification as a tool for the

investigation and prosecution of sex offenses and violent felony crimes. Laws of 1989,

ch. 350. The legislature found the "accuracy of [DNA] identification ... is superior to that

of any presently existing technique" and recognized the "importance of this scientific

breakthrough in providing a reliable and accurate tool for the investigation and

prosecution of sex offenses as defined in RCW 9.94A.030(26) and violent offenses as
No. 72848-2-1/5


defined in RCW 9.94A.030(29)." Laws of 1989, ch. 350, § 1. The statute required every

person convicted of a felony sex offense or violent offense to provide a blood sample for

DNA "identification analysis and prosecution of a sex offense or a violent offense." Laws

of 1989, ch. 350, §4.

       In 2002, the legislature amended the DNA statute to establish a DNA database

that would contain DNA samples for all convicted felony offenders. Laws of 2002, ch.

289, §§1,2. In addition to the importance of using the DNA database for the

investigation and prosecution of criminal cases, the legislature found the DNA database

is also an important tool for the exclusion of individuals subject to investigation or

prosecution, the detection of recidivist acts, and the identification and location of missing

and unidentified persons. Laws of 2002, ch. 289, § 1.

       RCW 43.43.753 states, in pertinent part:

       Findings—DNA identification system—DNA database—DNA data
       bank. The legislature finds that recent developments in molecular biology
       and genetics have important applications for forensic science. It has been
       scientifically established that there is a unique pattern to the chemical
       structure of the deoxyribonucleic acid (DNA) contained in each cell of the
       human body. The process for identifying this pattern is called "DNA
       identification."
              The legislature further finds that DNA databases are important tools
       in criminal investigations, in the exclusion of individuals who are the subject
       of investigations or prosecutions, and in detecting recidivist acts. It is the
       policy of this state to assist federal, state, and local criminal justice and law
       enforcement agencies in both the identification and detection of individuals
       in criminal investigations and the identification and location of missing and
       unidentified persons. Therefore, it is in the best interest of the state to
       establish a DNA database and DNA data bank containing DNA samples
       submitted by persons convicted of felony offenses and other crimes as
       specified in RCW 43.43.754. DNA samples necessary for the identification
       of missing persons and unidentified human remains shall also be included
       in the DNA database.
No. 72848-2-1/6


       The legislature required every person convicted of a felony offense to submit a

DNA sample for DNA identification analysis. Laws of 2002, ch. 289, § 2. Former RCW

43.43.754(1) (2002) states, in pertinent part:

       Every adult or juvenile individual convicted of a felony, stalking under RCW
       9A.46.110, harassment under RCW 9A.46.020, communicating with a
       minor for immoral purposes under RCW 9.68A.090, or adjudicated guilty of
       an equivalent juvenile offense must have a biological sample collected for
       purposes of DNA identification analysis.

       The legislature adopted a new section that required the court to impose a $100

DNA fee for collection of a DNA sample "unless the court finds that imposing the fee

would result in undue hardship on the offender." Laws of 2002, ch. 289, § 4.2 The new

section states:


                NEW SECTION. Sec. 4. A new section is added to chapter 43.43
       RCW to read as follows:
              Every sentence imposed under chapter 9.94A RCW, for a felony
       specified in RCW 43.43.754 that is committed on or after the effective date
       of this act, must include a fee of one hundred dollars for collection of a
       biological sample as required under RCW 43.43.754, unless the court finds
       that imposing the fee would result in undue hardship on the offender. The
       fee is a court-ordered legal financial obligation as defined in RCW
       9.94A.030, payable by the offender after payment of all other legal financial
       obligations included in the sentence has been completed. The clerk of the
       court shall transmit fees collected to the state treasurer for deposit in the
       state DNA data base account created under section 5 of this act.

Laws of 2002, ch. 289.

        In 2008, the legislature amended the DNA fee statute to make the DNA fee

mandatory without regard to hardship. Laws of 2008, ch. 97, § 3. The legislature

deleted the language "for collection of a biological sample as required under RCW

43.43.754, unless the court finds that imposing the fee would result in undue hardship on



        2The imposition and recovery of court costs and fees was unknown at common law and is
therefore entirely statutory. State v. Smits. 152 Wn. App. 514, 519, 216 P.3d 1097 (2009); State v.
Cawver. 182 Wn. App. 610, 619, 330 P.3d 219 (2014).
No. 72848-2-1/7



the offender." Laws of 2008, ch. 97, § 3. As amended, the plain and unambiguous

language of RCW 43.43.7541 states, "Every sentence imposed for a crime specified in

RCW 43.43.754 must include a fee of one hundred dollars." Former RCW 43.43.7541

(2008) states:

       DNA identification system—Collection of biological samples—Fee.
       Every sentence imposed under chapter 9.94A RCW, for a crime specified in
       RCW 43.43.754 must include a fee of one hundred dollars. The fee is a
       court-ordered legal financial obligation as defined in RCW 9.94A.030,
       payable by the offender after payment of all other legal financial obligations
       included in the sentence has been completed. The clerk of the court shall
       transmit eighty percent of the fee collected to the state treasurer for deposit
       in the state DNA database account created under RCW 43.43.7532, and
       shall transmit twenty percent of the fee collected to the agency responsible
       for collection of a biological sample from the offender as required under
       RCW 43.43.754.


The statute states that 80 percent of the fee is dedicated to the DNA database account

under RCW 43.43.7532. RCW 43.43.7541. RCW 43.43.7532 establishes a state DNA

database account to use "only for creation, operation, and maintenance of the DNA

database under RCW43.43.754."3

Ripeness and RAP 2.5(a)(3)

       For the first time on appeal, Shelton contends there is no rational basis to require

imposition of the mandatory DNA fee at sentencing on an indigent defendant. Shelton

concedes the mandatory DNA fee serves the legitimate purpose of funding the DNA

database. Shelton claims that absent a determination at sentencing that he has "the

ability or likely future ability to pay," the DNA fee statute violates substantive due process.

The State asserts the as-applied substantive due process challenge to the DNA fee

statute is not ripe for review and is not a manifest constitutional error subject to review

         3In 2011, the legislature amended RCW 43.43.7541 to add that for "all other sentences," the DNA
fee is "payable by the offender in the same manner as otherassessments imposed." Laws of 2011, ch.
125, §1.
No. 72848-2-1/8


under RAP 2.5(a)(3). We agree with the State.

       A preenforcement constitutional challenge to the mandatory DNA fee statute is

ripe for review on the merits ifthe issue raised is primarily legal, does not require further

factual development, and the challenged action is final. State v. Cates, 183 Wn.2d 531,

534, 354 P.3d 832 (2015); State v. Sanchez Valencia, 169 Wn.2d 782, 786, 239 P.3d

1059 (2010). The court must also consider the risk of hardship to the parties "if we

decline to address the merits of his challenge at this time." Cates, 183 Wn.2d at 534-35.

       The due process clause protects an indigent offender from incarceration based

solely on inability to pay court ordered fees. U.S. Const, amends. V, XIV, § 1: Bearden

v. Georgia. 461 U.S. 660, 664, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983); State v. Nason,

168 Wn.2d 936, 945, 233 P.3d 848 (2010).

       In Fuller v.Oregon, 417 U.S. 40, 44-46, 94 S. Ct. 2116, 40 L. Ed. 2d 642 (1974),

the Supreme Court upheld an Oregon statute that included procedural and substantive

safeguards designed to protect the rights of indigent defendants while authorizing

reimbursement from offenders who had the ability to repay court costs.

       In Bearden, the Court held that revocation of probation based on the failure of an

indigent offender to pay fines violated due process. Bearden, 461 U.S. at 672-73. The
Court held the "sentencing court must inquire into the reasons for the failure to pay."
Bearden, 461 U.S. at 672. The sentencing court cannot deprive an offender "of his . . .

freedom simply because, through no fault of his own, he cannot pay the fine. Such a
deprivation would be contrary to the fundamental fairness required by the Fourteenth
Amendment." Bearden, 461 U.S. at 672-73. However, the Court held that ifthe offender

"willfully refused to pay the fine or restitution when he has the means to pay, the State is
perfectly justified in using imprisonment as a sanction to enforce collection." Bearden,

                                               8
No. 72848-2-1/9



461 U.S. at 668.

        In State v. Curry. 118Wn.2d911, 829 P.2d 166 (1992), our Supreme Court

addressed a constitutional challenge to the imposition of the mandatory victim penalty

assessment. The court rejected the argument that "the statute could operate to imprison

[defendants] unconstitutionally in the future if they are unable to pay the penalty." Curry,

118 Wn.2d at 917-18. Even though the statute contained no provision to waive the victim

penalty assessment for an indigent defendant, the court held sufficient safeguards

prevented incarceration for failure to pay the mandatory victim penalty assessment

because the statute required a show cause hearing, the court had the discretion to treat a

nonwillful violation more leniently, and incarceration would result only ifthe failure to pay

was willful. Curry, 118 Wn.2d at 917-18.4

        The court concluded constitutional principles are implicated only when the State

seeks to enforce collection of the mandatory assessment and noted "imposition of the

penalty assessment, standing alone, is not enough to raise constitutional concerns."

Curry, 118 Wn.2d at 917 & n.3.

        "It is at the point of enforced collection . . . , where an indigent may be faced
        with the alternatives of payment or imprisonment, that he may assert a
        constitutional objection on the ground of his indigency."

Curry, 118 Wn.2d at 9175 (quoting State v. Curry, 62 Wn. App. 676, 681, 814 P.2d 1252


        4 If an offender violates a condition of the judgment and sentence, the court may issue a summons
for a show cause hearing. See RCW 9.94B.040(3)(b). If the court finds the violation is not willful, the court
may modify the order. RCW 9.94B.040(3)(d); see ajso RCW 9.94A.6333. RCW 9.94A.6333 provides, in
pertinent part:
        (1) If an offender violates any condition or requirement ofa sentence, and the offender is
        not being supervised by the department, the court may modify its order ofjudgment and
         sentence and impose further punishment in accordance with this section.

                  [(2)](d) If the court finds that the violation was not willful, the court may modify its
         previous order regarding payment of legal financial obligations.
         5 Internal quotation marks omitted, alteration in original.
No. 72848-2-1/10


(1991)).

       Here, Shelton's as-applied substantive due process challenge is primarily legal

and the challenged action is final. See Cates, 183 Wn.2d at 534. But his constitutional

challenge requires further factual development, and the potential risk of hardship does

not justify review before the relevant facts are fully developed. See Cates, 183 Wn.2d at

535.


       A constitutional challenge to the DNA fee statute is not ripe for review until the

State attempts to enforce collection of the fee. "[T]he relevant question is whether the

defendant is indigent at the time the State attempts to sanction the defendant for failure

to pay." Sanchez Valencia, 169 Wn.2d at 789;6 see also State v. Lundv, 176 Wn. App.

96, 108, 308 P.3d 755 (2013); State v. Kuster, 175 Wn. App. 420, 424, 306 P.3d 1022

(2013). Because the State has not sought to enforce collection of the DNA fee or impose

sanctions for failure to pay the DNA fee, Shelton's as-applied substantive due process

challenge to the DNA fee statute is not ripe for review. See Lundv, 176 Wn. App. at 108

(constitutional challenge to imposition of mandatory victim penalty assessment and DNA

fee not ripe for review "until the State attempts to curtail a defendant's liberty interest by

enforcing them"); see ajso State v. Ziegenfuss, 118 Wn. App. 110, 112, 74 P.3d 1205

(2003) (Because the defendant has not yet failed to pay nor been incarcerated or

otherwise sanctioned for failure to pay, "her due process rights have not been violated

and her argument is not yet ripe for review.").

       State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015), does not support Shelton's

argument that his constitutional challenge to the DNA fee statute is ripe for review. The
court in Blazina did not address imposition of mandatory fees. The court held RCW

           Emphasis omitted.

                                               10
No. 72848-2-1/11



10.01.160(3) requires the sentencing court to make an individualized inquiry into the

defendant's ability to pay discretionary legal financial obligations. Blazina, 182 Wn.2d at

837-38. RCW 10.01.160(3) provides:

        The court shall not order a defendant to pay costs unless the defendant is
        or will be able to pay them. In determining the amount and method of
        payment of costs, the court shall take account of the financial resources of
        the defendant and the nature of the burden that payment of costs will
        impose.

        But unlike discretionary legal financial obligations, the legislature unequivocally

requires imposition of the mandatory DNA fee and the mandatory victim penalty

assessment at sentencing without regard to finding the ability to pay.7

        [T]he legislature has divested courts of the discretion to consider a
        defendant's ability to pay when imposing [mandatory legal financial]
        obligations. For victim restitution, victim assessments, [and] DNA fees, . . .
        the legislature has directed expressly that a defendant's ability to pay
        should not be taken into account. See, agu, State v. Kuster, 175 Wn. App.
        420, 306P.3d 1022(2013).

Lundv, 176 Wn. App. at 102; see also State v. Thompson, 153 Wn. App. 325, 338, 223

P.3d 1165 (2009) (DNA fee required irrespective of defendant's ability to pay); Kuster,

175 Wn. App. at 425 (court need not consider "the offender's past, present, or future

ability to pay" mandatory victim penalty assessment and DNA fee).

        We hold that because imposition of the mandatory DNA fee does not implicate

constitutional principles until the State seeks to enforce collection of the DNA fee or
impose a sanction for failure to pay, the as-applied substantive due process challenge to




        7The judgment and sentence clearly reflects the distinction between mandatory and discretionary
financial obligations.

                                                   11
No. 72848-2-1/12


RCW 43.43.7541 is not ripe for review.8

        The as-applied substantive due process challenge to the mandatory DNA fee

statute is also not a manifest error subject to review under RAP 2.5(a)(3).9 To review the

merits of the constitutional challenge to the DNA fee statute for the first time on appeal,

Shelton must show the error is manifest and implicates a constitutional interest. RAP

2.5(a)(3); State v. Kalebaugh, 183 Wn.2d 578, 583, 355 P.3d 253 (2015).

        Manifest error requires " 'a showing of actual prejudice.'" State v. O'Hara, 167

Wn.2d 91, 99, 217 P.3d 756 (2009) (quoting State v. Kirkman, 159 Wn.2d 918, 935, 155

P.3d 125 (2007)). Actual prejudice means "the claimed error had practical and

identifiable consequences." State v. Lamar, 180 Wn.2d 576, 583, 327 P.3d 46 (2014);

O'Hara, 167 Wn.2d at 99. Whether the error is identifiable and the defendant can raise a

claim for the first time on appeal turns on whether the record is sufficient to determine the

merits of the claim. O'Hara, 167 Wn.2d at 99; Kirkman, 159 Wn.2d at 935. "If the facts

necessary to adjudicate the claimed error are not in the record on appeal, no actual

prejudice is shown and the error is not manifest." State v. McFarland, 127 Wn.2d 322,

333, 899P.2d 1251 (1995).

        Until the State seeks to enforce collection of the DNA fee or impose a sanction for

failure to pay, Shelton cannot show his as-applied substantive due process claim is




        8 The State also asserts Shelton does not have standing. A criminal defendant "always has
standing to challenge his or her sentence on grounds of illegality." State v. Bahl, 164 Wn.2d 739, 750, 193
P.3d 678 (2008). However, a defendant does not have standing to challenge a statute on constitutional
grounds unless the defendant can show harm. Cates, 183 Wn.2d at 540. Because Shelton cannot show
harm until the State seeks to enforce collection of the DNA fee, he does not have standing.
        9 RAP 2.5(a)(3) provides, in pertinent part:
        Errors Raised for First Time on Review. The appellate court may refuse to review any
        claim of error which was not raised in the trial court. However, a party may raise the
        following claimed errors for the first time in the appellate court:. .. manifest error affecting
        a constitutional right.

                                                       12
No. 72848-2-1/13


manifest constitutional error under RAP 2.5(a)(3). We also note the record contains no

information about future ability to pay the mandatory $100 DNA fee. See State v.

Stoddard. 192 Wn. App. 222, 228-29, 366 P.3d 474 (2016).

Mental Health Evaluation

       Shelton contends the court erred in ordering him to obtain a mental health

evaluation as a condition of community custody.

       The plain and unambiguous language of former RCW 9.94B.080 (2008)10 states

the court may order a mental health evaluation only if the court finds Shelton "is a

mentally ill person as defined in RCW 71.24.025" and mental illness likely "influenced the

offense." Former RCW 9.94B.080 states:

       The court may order an offender whose sentence includes community
       placement or community supervision to undergo a mental status evaluation
       and to participate in available outpatient mental health treatment, if the
       court finds that reasonable grounds exist to believe that the offender is a
       mentally ill person as defined in RCW 71.24.025, and that this condition is
       likely to have influenced the offense. An order requiring mental status
       evaluation or treatment must be based on a presentence report and, if
       applicable, mental status evaluations that have been filed with the court to
       determine the offender's competency or eligibility for a defense of insanity.
       The court may order additional evaluations at a later date if deemed
       appropriate.[11]

       Although the court found "mental health issues contributed to this offense" and

"[treatment is reasonably related to the circumstances of this crime and reasonably

necessary to benefit the defendant and the community," the court did not find Shelton "is

a mentally ill person as defined in RCW 71.24.025." Former RCW 9.94B.080. The State

concedes the court did not comply with the statutory requirements to order a mental



        10 Laws OF 2008, ch. 231, § 53.
       11 (Emphasis added.) In 2015, the legislature amended RCW 9.94B.080 to state consideration of a
presentence report is no longer mandatory. Laws of 2015, ch. 80, § 1 ("An order requiring mental status
evaluation or treatment may be based on a presentence report.").

                                                   13
No. 72848-2-1/14


health evaluation. We accept the concession as well taken, and remand to determine

whether to order a mental health evaluation according to the requirements set forth in

former RCW 9.94B.080.

Statement of Additional Grounds

       Shelton makes a number of arguments in the statement of additional grounds

including whether the State violated his right to a fair trial by failing to timely provide

complete discovery. At our request, the State filed a response to the statement of

additional grounds. The State concedes an inadvertent discovery violation occurred in

failing to deliver certain discovery to Shelton until the day before trial but argues Shelton

cannot show prejudice. We agree. A continuance is an appropriate remedy for

noncompliance with the discovery rule. State v. Krenik, 156 Wn. App. 314, 321, 231 P.3d

252 (2010). Where the defense does not move for a continuance, the defendant cannot

establish actual prejudice. Krenik, 156 Wn. App. at 321. Here, the court agreed to

continue the trial but Shelton refused to do so. We reject the remainder of the arguments

in the statement of additional grounds as without merit.

       We affirm imposition of the mandatory DNA fee but remand to determine whether

the statutory requirements to order a mental health evaluation are met.




WE CONCUR:




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                                                14
