                                                                           FILED 

                                                                       JANUARY 12,2016 

                                                                   In the Office of the Clerk of Court 

                                                                 W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                           )
                                               )         No. 32756-6-III
                     Respondent,               )
                                               )
       v.                                      )
                                               )
GARY LYLE STODDARD,                            )
                                               )         PUBLISHED OPINION
                     Appellant.                )


       FEARING, J. - Following Gary Stoddard's convictions for first degree murder and

first degree kidnapping, the sentencing court imposed legal financial obligations,

including a mandatory deoxyribonucleic acid (DNA) collection fee. Stoddard appeals the

financial obligations. He argues that the trial court failed to address his current or future

ability to pay the obligations. He also contends the mandatory DNA fee is

unconstitutional when a court has not first determined the defendant has the ability to

pay. We affirm Stoddard's sentence.

                                       PROCEDURE

       The underlying facts that support Gary Stoddard's conviction hold no relevance to
No. 32756-6-1II
State v. Stoddard


this appeal. A jury found Mr. Stoddard guilty of first degree murder and first degree

kidnapping for the shooting death of his nephew's girlfriend. The trial court sentenced

him to 440 months' incarceration and imposed legal financial obligations, including

restitution of$18,159.22 to the crime victim's compensation fund, $500.00 as a crime

victim assessment fee, $200.00 for the criminal case filing fee, and $100.00 for a DNA

collection fee.

       Gary Stoddard agreed to the restitution amount. Thus the trial court commented

during the sentencing hearing: "I understand you have agreed to the 18-thousand amount.

If there is anything further, you have to approve it. If you don't approve it, you have the

right to a hearing." Report of Proceedings at 1190. Stoddard's judgment and sentence

reads: "The court has considered the total amount owing, the defendant's present and

future ability to pay legal financial obligations, including the defendant's financial

resources and the likelihood that the defendant's status will change." Clerk's Papers at

237.

                                        ANALYSIS

       Gary Stoddard contends that the trial court erred in imposing legal financial

obligations without inquiring into his ability to pay. Stoddard did not object to the

imposition of the financial obligations at sentencing. Nevertheless, Stoddard asks this

court to exercise its discretion, pursuant to State v. Blazina, 182 Wn.2d 827, 344 P.3d 680

(2015) and remand for a hearing on his ability to pay the obligations. Stoddard's reliance

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No. 32756-6-III
State v. Stoddard


on Blazina is misplaced, however, since Stoddard's trial court only imposed mandatory

legal financial obligations.

       The trial court imposed a $500 victim assessment fee, a $200 criminal filing fee,

and a $100 DNA collection fee. RCW 7.68.035, RCW 36.18.020(2)(h), and RCW

43.43.7541 respectively mandate the fees regardless of the defendant's ability to pay.

Trial courts must impose such fees regardless of a defendant's indigency. State v. Lundy,

176 Wn. App. 96, 102,308 P.3d 755 (2013). Blazina addressed only discretionary legal

financial obligations.

       Gary Stoddard agreed to the restitution amount. Thus, the invited error doctrine

precludes review of the restitution judgment. See State v. Young, 63 Wn. App. 324, 330,

818 P.2d 1375 (1991). In State v. Young, this court held that the doctrine of invited error

precluded the defendant from raising an argument on appeal that the restitution order

requiring him to pay a homicide victim's child support obligation was not authorized by

statute, when defendant agreed to restitution amount.

       Gary Stoddard next argues, for the first time on appeal, that the imposition of a

mandatory DNA collection fee without inquiry into ability to pay violates substantive due

process principles. RCW 43.43.754 demands a biological sample, for purposes of DNA

identification analysis, from an adult convicted ofa felony. In turn, RCW 43.43.7541

imposes a $100 mandatory fee on the adult convicted of a felony to defray the cost of the

collection of the sample. The latter statute reads, in relevant part:

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No. 32756-6-II1
State v. Stoddard


               Every sentence imposed 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 and other applicable
       law. For a sentence imposed under chapter 9.94A RCW, the fee is payable
       by the offender after payment of all other legal financial obligations
       included in the sentence has been completed. For all other sentences, the
       fee is payable by the offender in the same manner as other assessments
       imposed....

RCW 43.43.7541.

       Gary Stoddard contends that the mandatory $100 DNA collection fee imposed

under RCW 43.43.7541 violates principles of substantive due process because the trial

court did not investigate his ability to pay the fee. Nevertheless, Stoddard did not

challenge the constitutionality of the DNA collection fee before the trial court. We,

therefore, decline to address the argument under the circumstances of this appeaL

       A party may not generally raise a new argument on appeal that the party did not

present to the trial court. In re Det. ofAmbers, 160 Wn.2d 543, 557 n.6, 158 P.3d 1144

(2007). A party must inform the court of the rules of law it wishes the court to apply and

afford the trial court an opportunity to correct any error. Smith v. Shannon, 100 Wn.2d

26,37,666 P.2d 351 (1983).

       RAP 2.5(a) formalizes a fundamental principle of appellate review. The first

sentence of the rule reads:

                (a) 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.



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No. 32756-6-III
State v. Stoddard


RAP 2.5. No procedural principle is more familiar than that a constitutional right, or a

right of any other sort, may be forfeited in criminal cases by the failure to make timely

assertion of the right before a tribunal having jurisdiction to determine it. United States

v. Olano, 507 U.S. 725, 731,113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993); Yakus v. United

States, 321 U.S. 414, 444,64 S. Ct. 660,88 L. Ed. 834 (1944).

       Good sense lies behind the requirement that arguments be first asserted at trial.

The prerequisite affords the trial court an opportunity to rule correctly on a matter before

it can be presented on appeal. State v. Strine, 176 Wn.2d 742, 749, 293 P.3d 1177

(2013). There is great potential for abuse when a party does not raise an issue below

because a party so situated could simply lie back, not allowing the trial court to avoid the

potential prejudice, gamble on the verdict, and then seek a new trial on appeal. State v.

Weber, 159 Wn.2d 252,271-72, 149 P.3d 646 (2006); State v. Emery, 174 Wn.2d 741,

762,278 P.3d 653 (2012). The theory of preservation by timely objection also addresses

several other concerns. The rule serves the goal ofjudicial economy by enabling trial

courts to correct mistakes and thereby obviate the needless expense of appellate review

and further trials, facilitates appellate review by ensuring that a complete record of the

issues will be available, and prevents adversarial unfairness by ensuring that the

prevailing party is not deprived of victory by claimed errors that he had no opportunity to

address. State v. Strine, 176 Wn.2d at 749-50; State v. Scott, 110 Wn.2d 682, 685-88,

757 P.2d 492 (1988).

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No. 32756-6-111
State v. Stoddard


       Countervailing policies support allowing an argument to be raised for the first time

on appeal. For this reason, RAP 2.5(a) contains a number of exceptions. RAP 2.5(a)(3)

allows an appellant to raise for the first time "manifest error affecting a constitutional

right," an exception on which a criminal appellant commonly relies. Constitutional errors

are treated specially under RAP 2.5(a) because they often result in serious injustice to the

accused and may adversely affect public perceptions of the fairness and integrity of

judicial proceedings. State v. Scott, 110 Wn.2d at 686-87. Prohibiting all constitutional

errors from being raised for the first time on appeal would result in unjust imprisonment.

2A KARL B. TEGLAND, WASHINGTON: RULES PRACTICE RAP 2.5, at 218 (7th ed. 2014).

On the other hand, "permitting every possible constitutional error to be raised for the first

time on appeal undermines the trial process, generates unnecessary appeals, creates

undesirable retrials and is wasteful ofthe limited resources of prosecutors, public

defenders and courts," State v. Lynn, 67 Wn. App. 339, 344, 835 P.2d 251 (1992).

       Washington courts and even decisions internally have announced differing

formulations for "manifest error." First, a manifest error is one "truly of constitutional

magnitude." State v. Scott, 110 Wn.2d at 688. Second, perhaps perverting the term

"manifest," some decisions emphasize prejudice, not obviousness. The defendant must

identify a constitutional error and show how, in the context of the trial, the alleged error

actually affected the defendant's rig~ts. It is this showing of actual prejudice that makes

the error "manifest," allowing appellate review. State v. O'Hara, 167 Wn.2d 91, 99, 217

                                              6

I

I
!
     No. 32756-6-111
     State v. Stoddard


     P.3d 756 (2009); Scott, 110 Wn.2d at 688; Lynn, 67 Wn. App. at 346. A third and

     important formulation for purposes of this appeal is the facts necessary to adjudicate the

     claimed error must be in the record on appeal. State v. McFarland, 127 Wn.2d 322, 333,

     899 P.2d 1251 (1995); State v. Riley, 121 Wn.2d 22, 31, 846 P.2d 1365 (1993).

            In State v. Riley, Joseph Riley argued that the admission of incriminating

     statements violated his Fourth Amendment to the United States Constitution rights

     because the statements were the fruit of an illegal search of his home. The state high

     court refused to entertain the argument because the record lacked clarity as to whether

     Riley uttered the statements before being told the investigating officer possessed a search

     warrant.

            We consider whether the record on appeal is sufficient to review Gary Stoddard's

     constitutional arguments. Stoddard's contentions assume his poverty. Nevertheless, the

     record contains no information, other than Stoddard's statutory indigence for purposes of

     hiring an attorney, that he lacks funds to pay a $100 fee. The cost ofa criminal charge's

     defense exponentially exceeds $100. Therefore, one may be able to afford payment of

     $100, but not afford defense counsel. Stoddard has presented no evidence of his assets,

     income, or debts. Thus, the record lacks the details important in resolving Stoddard's due

     process argument.




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No. 32756-6-III
State v. Stoddard


       Gary Stoddard underscores that other mandatory fees must be paid first and

interest will accrue on the $100 DNA collection fee. This emphasis helps Stoddard little,

since we still lack evidence of his income and assets.

                                     CONCLUSION 


       We affirm Gary Stoddard's sentence. 





WE CONCUR: 





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