State Of Washington, Resp-cross App V. Mark Clemens Shangin, App-cross Resp ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE
Respondent,
No. 82825-8-I
v.
UNPUBLISHED OPINION
CLEMENS MARK SHANGIN,
Appellant.
DWYER, J. — Clemens Shangin appeals from the judgment and sentence
entered by the superior court. According to Shangin, the superior court erred by
failing to clarify in the judgment that the legal financial obligations (LFOs) that
were imposed by the court could not be satisfied through the application of Social
Security benefits. Because Shangin does not establish an entitlement to relief on
this claim, we affirm.
I
On April 1, 2021, a jury found Clemens Shangin guilty of one count of
indecent liberties and, by special verdict, found that the victim was a member of
the same family or household. On June 23, Shangin was sentenced to 24
months of incarceration. The superior court waived all court costs except for a
$500 victim penalty assessment and a $100 DNA fee. The judgment entered by
the superior court contained the following provision:
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5.3 NOTICE OF INCOME-WITHOLDING ACTION. If the court
has not ordered an immediate notice of payroll deduction in
paragraph 4.1, you are notified that the Department of Corrections
or the clerk of the court may issue a notice of payroll deduction
without notice to you if you are more than 30 days past due in
monthly payments in an amount equal to or greater than the
amount payable for one month. RCW 9.94A.7602. Other income-
withholding action under RCW 9.94A may be taken without further
notice. RCW 9.94A.7606.
The judgment did not contain any language with regard to whether the
LFOs imposed by the superior court could be satisfied through application of
Social Security benefits.
Shangin appeals.
II
We begin by clarifying our scope of review. “The general rule is that
appellate courts will not consider issues raised for the first time on appeal.” State
v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007) (citing RAP 2.5(a)).
“However, a claim of error may be raised for the first time on appeal if it is a
manifest error affecting a constitutional right.” Kirkman, 159 Wn.2d at 926 (citing
RAP 2.5(a)(3)). “Pursuant to RAP 2.5(a)(3), to raise an error for the first time on
appeal, the error must be ‘manifest’ and truly of constitutional dimension.”
Kirkman, 159 Wn.2d at 926. Put differently, “[t]he defendant must identify a
constitutional error and show how the alleged error actually affected the
defendant’s rights at trial. It is this showing of actual prejudice that makes the
error ‘manifest,’ allowing appellate review.” Kirkman, 159 Wn.2d at 926-27. “If
the facts necessary to adjudicate the claimed error are not in the record on
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appeal, no actual prejudice is shown and the error is not manifest.” State v.
McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995).
III
Turning to the challenge on appeal, Shangin contends that the judgment
entered by the superior court erroneously failed to provide that the LFOs
imposed by the court could not be satisfied through application of Social Security
benefits. We disagree.
Pursuant to 42 U.S.C. § 407(a), LFOs may not be satisfied through
application of Social Security benefits. State v. Dillon, 12 Wn. App. 2d 133, 153,
456 P.3d 1199 (2020) (citing State v. Catling, 193 Wn.2d 252, 438 P.3d 1174(2019)), review denied, 195 Wn.2d 1022 (2020). However, for several reasons,
Shangin is not entitled to appellate relief on his claim of error.
First, Shangin did not raise this issue in the superior court. Therefore, the
issue is not preserved on appeal. See Kirkman, 159 Wn.2d at 926.
Second, the claimed error is not a manifest error affecting a constitutional
right. See RAP 2.5(a)(3). Indeed, the claimed error is not of a constitutional
dimension because the prohibition against LFOs being satisfied through Social
Security benefits is derived from a federal statute. See 42 U.S.C. § 407(a).
Furthermore, the claimed error is not manifest because there is no indication in
the record that Shangin receives Social Security benefits. See McFarland, 127
Wn.2d at 333. As such, Shangin fails to show that he was actually prejudiced by
the absence of any language in the sentence providing that the LFOs imposed by
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the superior court could not be satisfied through Social Security benefits. See
Kirkman, 159 Wn.2d at 926-27.
Finally, because the record contains no evidence that Shangin receives
Social Security benefits, the judgment was not required to state that the LFOs
could not be satisfied through application of Social Security benefits. In Dillon,
we remanded the cause to the trial court “to amend the judgment and sentence
to indicate that the $500 victim assessment fee may not be satisfied out of any
funds subject to 42 U.S.C. § 407(a).” 12 Wn. App. 2d at 153. We did so
because the record therein indicated that “Dillon’s sole source of income [was]
his Social Security disability funds.” Dillon, 12 Wn. App. 2d at 153. Likewise, in
Catling, our Supreme Court remanded the cause “to the trial court to revise the
judgment and sentence and repayment order . . . to indicate that [an] LFO may
not be satisfied out of any funds subject to . . . 42 U.S.C. § 407(a).” 193 Wn.2d
at 266. However, during the sentencing hearing in that case, “Catling’s attorney
argued that . . . Catling’s sole source of income was Social Security disability
benefits.” Catling, 193 Wn.2d at 255. Contrary to the records in the cited cases,
the record herein does not contain any evidence that Shangin receives Social
Security benefits.
Accordingly, Shangin’s assignment of error fails.1
1 Shangin also filed a statement of additional grounds. In this filing, Shangin does not
provide any citations to the record, cite to any authority, or request any relief. Therefore, he has
not established an entitlement to relief. See RAP 10.10(c).
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No. 82825-8-I/5
Affirmed.
WE CONCUR:
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