State of Washington v. Gregg Wynn Hansen ( 2015 )

FILED
JULY 14,2015
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. 32269-6-111
Respondent, ) (consolidated with
) No. 32384-6-111 and
v. ) No. 32801-5-111)
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GREGG W. HANSEN, ) UNPUBLISHED OPINION
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Appellant. )
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In the Matter of Personal Restraint of:
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GREGG W. HANSEN, )
Petitioner.
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KORSMO, J. - By way of appeal, Gregg Hansen contends that the court erred in
imposing a $100 DNA (deoxyribonucleic acid) collection fee. By way of personal
restraint petition (PRP), he also challenges his offender score. Both contentions are
without merit. We affirm the conviction for failing to register as a sex offender and
dismiss the petition.
FACTS
Mr. Hansen was convicted of failing to register as a sex offender, third offense,
after a bench trial. His judgment and sentence form listed 12 prior adult felony
No. 32269-6-111 (consolidated with Nos. 32384-6-111 & 32801-5-111)
State v. Hansen; PRP a/Hansen
convictions, including five previous failure to register convictions. Accordingly, the
form recognizes an offender score of "9+." There was no challenge to the offender score
calculation and no discussion of it at sentencing. The court imposed a standard range
sentence.
The court also imposed only the mandatory financial obligations for payment of
the crime victim compensation act assessment and a $100 DNA (deoxyribonucleic acid)
collection fee. The court recognized Mr. Hansen's disability and struck the pre-printed
language from the judgment and sentence indicating that the defendant had the ability to
pay his legal financial obligations.
Mr. Hansen filed a notice of appeal at the time of sentencing. Six weeks later he f
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filed a pro se motion to correct sentence, relying upon erR 7.8. Deeming it without
merit, the trial court transferred the matter to this court for consideration as a PRP. This
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court accepted the transfer and consolidated the PRP with the appeal. 1
ANALYSIS
The soleI issue presented by the appeal is a contention that the court erred in
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assessing the DNA collection fee because Mr. Hansen already had his DNA sample on I[ f
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I In his personal Statement of Additional Grounds, Mr. Hansen argues various
factual considerations as a basis for receiving a different sentence. As these do not
identify legal error, we will not consider them further. RAP 1O.10(c).
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No. 32269-6-II1 (consolidated with Nos. 32384-6-II1 & 32801-5-III)
State v. Hansen; PRP ofHansen
file with the State. We address that issue before turning to the offender score challenge
presented by the PRP.
Appeal
Mr. Hansen argues that the court erred in failing to exercise its discretion to not
require him to give another DNA sample and, therefore, he should not pay the DNA
assessment. However, even if we accept the dubious proposition that a court can abuse
discretion it was never asked to exercise, there was no error here. Even though the court
could waive the DNA collection, the court had no ability to waive the DNA collection
fee. Separate statutes govern the two situations.
Two related statutes are in play here. The first, RCW 43.43.754(1), requires
collection of a DNA sample from every person convicted of failing to register as a sex
offender, although it recognizes an exception ifthe "crime laboratory already has a DNA
sample ... for a qualifying offense." RCW 43.43.754(2). The second statute is the
adjoining RCW 43.43.7541. It provides, in part:
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.
By amendment ofRCW 43.43.7541, the legislature has mandated payment of the
DNA collection fee. See State v. Brewster, 152 Wn. App. 856,218 P.3d 249 (2009). The
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No. 32269-6-111 (consolidated with Nos. 32384-6-111 & 32801-5-111)
State v. Hansen; PRP a/Hansen
purpose of the fee is to help pay for the testing of DNA samples and the maintenance and
operation of DNA databases. [d. at 860. To that end, it is a non-punitive legal financial
obligation. [d. at 861. Accordingly, it applies to each sentencing after its enactment. [d.
RCW 43.43.7541 mandates the assessment of the DNA fee for all relevant
offenses, including the one for which Mr. Hansen was convicted. That presents a
different question than whether the court should waive collection of an additional DNA
sample from Mr. Hansen per RCW 43.43.754(2). Even if the court had been asked to
waive the second collection and had granted the request, Mr. Hansen would still have to
pay the fee he now complains about. There is no causal connection between sample
collection and the fee assessment.
The argument is without merit.
Personal Restraint Petition
The PRP claims that the offender score was wrongly calculated and demands a
hearing to "recalculate offender score and hear pertinent inforemation [sic]." This
request puts the cart before the horse. A PRP must present the pertinent information that
establishes error before any hearing can be held. This petition therefore fails to meet its
basic burdens.
The burdens imposed on a petitioner in a PRP are significant. Because of the
significant societal costs of collateral litigation often brought years after a conviction and
the need for finality, reliefwill only be granted in a PRP if there is constitutional error
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No. 32269-6-III (consolidated with Nos. 32384-6-III & 32801-5-III)
State v. Hansen; PRP o/Hansen
that caused substantial actual prejudice or if a nonconstitutional error resulted in a
fundamental defect constituting a complete miscarriage ofjustice. In re Pers. Restraint
o/Woods, 154 Wn.2d 400, 409, 114 P.3d 607 (2005). It is the petitioner's burden to
establish this "threshold requirement." Id. To do so, a PRP must present competent
evidence in support of its claims. In re Pers. Restraint o/Rice, 118 Wn.2d 876, 885-86,
828 P.2d 1086, cert. denied, 506 U.S. 958 (1992). If the facts alleged would potentially
entitle the petitioner to relief, a reference hearing may be ordered to resolve the factual
allegations. Id. at 886-87.
Here, there is no actual dispute about the facts because Mr. Hansen never
presented any competing facts for consideration. Instead, the only information about the
offender score comes from the judgment and sentence, which recognizes 12 prior
convictions (totaling 14 points towards the offender score) and an additional point due to
the fact that Mr. Hansen was on community supervision at the time of the current crime.
While the PRP notes that facial invalidity is a basis for attacking a conviction, nothing on
the face of the judgment and sentence suggests it is facially invalid. Moreover, the PRP
itself makes no argument in support of its conclusion.
The PRP completely fails to meet its burden of showing a fundamental defect in
the offender score. Accordingly, the PRP must be dismissed.
The conviction is affirmed. The petition is dismissed.
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No. 32269-6-II1 (consolidated with Nos. 32384-6-III & 32801-5-III)
State v. Hansen; PRP ofHansen
A majority of the panel has determined this opinion will not be printed in the"
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
``~ Brown, A.C.J.
Lawrence-Berrey, J.
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