State Of Washington v. Seng Saelee

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 75625-7-1
Respondent,
DIVISION ONE
V.
SENG KOUANG SAELEE, UNPUBLISHED OPINION
Appellant. FILED: September 25, 2017
PER CURIAM. Seng Saelee appeals the victim penalty assessment
(VPA)imposed following his conviction for first degree criminal trespass. For the
first time on appeal, he contends the statute authorizing the mandatory VPA
assessment is unconstitutional as applied to defendants who do not have the
ability or likely future ability to pay them. He concedes his contention is not ripe
for review under our decision in State v. Shelton, 194 Wn. App. 660,671-74, 378
P.3d 230 (2016), review denied, 187 Wn.2d 1002, 386 P.3d 1088 (2017)," but
contends Shelton is wrongly decided because it relied on a distinguishable
case -- State v. Curry, 118 Wn.2d 911, 829 P.2d 166 (1992). We adhere to our
decision in Shelton.
Regardless of whether Curry is distinguishable in some respect, it still
supports Shelton's holding that an as applied substantive due process challenge
to financial obligations is not ripe until the,State attempts to collect them. Curly,
118 Wn.2d at 917; see also State v. Curry, 62 Wn. App. 676, 681, 814 P.2d 1252(1991), aff'd, 118 Wn.2d 911, 917, 829 P.2d 166 (1992). We adhere to that
'Accord State v. Lewis, 194 Wn. App. 709, 714-15, 379 P.3d 129, review denied, 186
Wn.2d 1025, 385 P.3d 118 (2016).
No. 75625-7-1/2
holding in Shelton, which applies equally to DNA and VPA assessments/fees.2
We also adhere to Shelton's holding that as-applied due process claims cannot
constitute manifest constitutional error under RAP 2.5(a) until the State seeks to
enforce collection of the fees or imposes a sanction for failure to pay.3 While this
court does have discretion to review Saelee's claim under RAP 2.5(a) in the
absence of manifest constitutional error, the claim is not ripe and Saelee has not
demonstrated that a significant risk of hardship will result from declining review at
this time. See Shelton, 194 Wn.App. at 670; State v. Cates, 183 Wn.2d 531,
536, 354 P.3d 832(2015).
Finally, even if Saelee's contentions were ripe for review and could be
raised for the first time on appeal, they would fail under State v. Seward, 196 Wn.
App. 579, 384 P.3d 620 (2016), review denied, 188 Wn.2d 1015, 396 P.3d 349(2017)(imposition of VPA, DNA collection fee, and criminal filing fee prior to any
individualized determination of ability to pay is rationally related to a legitimate
state interest). Saelee's arguments regarding costs on appeal are moot since
the State does not intend to seek such costs.
Affirmed.
For the court:
2 State v. Tyler, 195 Wn. App. 385, 404 n.11, 382 P.3d 699(2016)(applying Shelton to
mandatory VPA and rejecting argument that RCW 10.01.160(3) applies to mandatory
financial obligations); LCD
3 Shelton, at 672-73(RAP 2.5(a)(3) bars challenge to VPA, DNA fee and filing fee for the
first time on appeal because the claimed error is not "manifest" "Ninth the State attempts)
to enforce collection of the... fee or impose sanctions for failure to pay."); accord
Lewis, 194 Wn. App. at 715.
2