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TOMMIE BERNARD LEWIS,
Appellant. FILED: June 27, 2016
Schindler, J. — Tommie Bernard Lewis claims the mandatory deoxyribonucleic
acid (DNA) fee statute violates equal protection. Lewis asserts there is no rational basis
to require a repeat felony offender to pay the mandatory DNA fee. Lewis also claims
the court abused its discretion in ordering him to submit another DNA sample. We hold
the DNA fee statute that requires imposition of a fee for every felony sentence is
rationally related to the legitimate legislative objective to fund the creation and ongoing
operation and maintenance of the DNA database. We also conclude the court did not
abuse its discretion by requiring Lewis to submit a DNA sample, and affirm the
judgment and sentence.
FACTS
Tommie Bernard Lewis and Wendy Hynd were involved in a romantic
relationship and have a child together. On April 4, 2014, Swedish Hospital Emergency
No. 72637-4-1/2
Room medical personnel called 911 to report the domestic violence assault of Hynd.
The 911 report states:
COMMON CHILD FATHER PUNCHED COMPL [HYND] IN HEAD AND
STRANGLED HER, NO WEAPONS. UNK[NOWN] WHERE SUSP[ECT]
IS NOW. COMP HAS BEEN TREATED AT EVERETT HOSP.
Seattle Police Department Officer Morgan Irwin responded to the 911 call and
contacted Hynd. Hynd told Officer Irwin that Lewis hit her "multiple times in the face
and the back of the head with his fists . . . until she 'passed out'." Hynd said Lewis then
"came back [and] used his hands to strangle [her] until she 'passed out' again." Officer
Irwin took photographs of the "visible bruising and swelling to [her] face and neck."
On April 9, Seattle Police Department Detective Daljit Gill called Hynd to obtain
her consent to obtain medical records and take a written statement. Detective Gill
asked Hynd if "what she had told Officer Irwin about the strangling and getting punched
in the head was the truth." Hynd said yes. However, Hynd refused to sign a medial
release form, give a written statement, or testify at trial. " 'I didn't [die] and I just want
this all to go away so I can move on with my life and forget about what happened. I
don't want to go to court and I don't want to give a statement'."
Approximately three and a half hours later, Hynd called Detective Gill "sobbing."
During the recorded call, Hynd said that when Detective Gill "called her earlier," Lewis
was present and "look[ed] at her like he was going to hit her again." Hynd told Detective
Gill that she " 'said all that so [Lewis] wouldn't hit me.'"
On April 10, the State charged Lewis with assault in the second degree domestic
violence and tampering with a witness. The State alleged that on April 4, 2014, Lewis
assaulted Hynd by strangulation and attempted to induce her "to withhold any
No. 72637-4-1/3
testimony" and to "absent. . . herself from the criminal investigation or any official
proceeding.
Lewis pleaded not guilty at arraignment. The court entered a domestic violence
no-contact order. On July 16, the State filed an amended information to add two counts
of domestic violence misdemeanor violation of the no-contact order.
Lewis waived his right to a jury trial. The State called a number of witnesses at
trial. Hynd did not testify. The court admitted into evidence a number of recorded
telephone calls Lewis made from the jail.
The court found Lewis not guilty of assault in the second degree because the
State did not prove strangulation beyond a reasonable doubt.
In her report of what had brought her to the hospital, Ms. Hynd said that
besides being punched, she had also been choked. The charge in this
case of assault in the second degree is premised upon an allegation that
she was assaulted by strangulation. The medical evidence, however,
standing alone, is insufficient to establish the essential element that her
neck was compressed with the result that her blood flow or breathing were
obstructed or that it was compressed with such an intent.
The court found Lewis guilty beyond a reasonable doubt of witness tampering
and two counts of misdemeanor violation of a court order. The court found Lewis
"repeatedly demonstrated a very strong concern" about whether Hynd "was cooperating
with the authorities and whether she intended to appear when the case came on for
trial." The court pointed to the evidence that Lewis told his father, "If you talk to her, tell
her the best thing is just don't pop up." The court found the recorded jail calls showed
Lewis "made direct contact with Ms. Hynd" and "was knowingly and willfully violating the
terms of the April 22 court order."
No. 72637-4-1/4
With an offender score of 5, the court imposed a 17-month sentence. "Appendix
B" to the judgment and sentence lists prior felony convictions of violation of the Uniform
Controlled Substances Act, chapter 69.50 RCW, in 1995, 2000, and 2004.
The court ordered Lewis to provide a biological sample for DNA identification
analysis and DNA testing. The court ordered Lewis to pay the mandatory victim penalty
assessment of $500 and the mandatory DNA fee of $100. Lewis did not object. The
court waived imposition of all discretionary fees, costs, and interest on the mandatory
obligation of $600.
ANALYSIS
For the first time on appeal, Lewis claims that as applied to an indigent
defendant, imposition of the mandatory DNA fee under RCW 43.43.7541 violates
substantive due process. Lewis also claims that as applied to a repeat felony offender,
the DNA fee statute violates equal protection.1 The State contends the substantive due
process and equal protection constitutional challenges to the DNA fee statute are not
ripe for review or manifest constitutional error under RAP 2.5(a)(3).
In State v. Shelton, 72848-2-I, slip op. at 1 (Wash. Ct. App. June 20, 2016), we
considered the same as-applied substantive due process challenge to the DNA fee
statute. We held that until the State attempts to enforce collection of the DNA fee or
impose sanctions for failure to pay, the claim is not ripe for judicial review and is not an
error of constitutional magnitude subject to review under RAP 2.5(a)(3). Shelton, slip
op. at 11-12.
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 ifthe state has previously collected the juvenile
offender's DNA as a result of a priorconviction." 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. 72637-4-1/5
We adhere to our decision in Shelton as to Lewis's as-applied substantive due
process challenge to the DNA fee statute. But we reach a different conclusion on his
equal protection challenge to the statute. Because the equal protection challenge to the
DNA fee statute is ripe for review and meets the requirements of RAP 2.5(a)(3), we
reach the merits of that claim. State v. Cates, 183 Wn.2d 531, 538-39, 354 P.3d 832
(2015); State v. Lamar, 180 Wn.2d 576, 582-83, 327 P.3d 46 (2014).2
The Fourteenth Amendment to the United States Constitution and article I,
section 12 of the Washington Constitution guarantee that "persons similarly situated
with respect to the legitimate purpose of the law must receive like treatment." State v.
Manussier. 129 Wn.2d 652, 672, 921 P.2d 473 (1996); State v. Coria, 120 Wn.2d 156,
169. 839 P.2d 890 (1992): State v. Schaaf, 109Wn.2d 1, 17, 743 P.2d 240 (1987). Our
Supreme Court has held the right to equal protection guaranteed under the Fourteenth
Amendment and by the privileges and immunities clause of the Washington Constitution
are "substantially identical and considered by this court as one issue." State v. Smith,
117 Wn.2d 263, 281, 814 P.2d 652 (1991).
In analyzing an equal protection claim, we "must first determine the standard of
review against which to test the challenged legislation." Seelev v. State, 132 Wn.2d
776, 791, 940 P.2d 604 (1997). Lewis correctly concedes the rational relationship test
applies to his challenge to the mandatory DNA fee statute.
Under the rational basis test, the challenged law must rationally relate to a
legitimate state interest. State v. Shawn P., 122 Wn.2d 553, 561, 859 P.2d 1220
2We reject the State's argument that Lewis 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).
No. 72637-4-1/6
(1993). The rational basis test is "highly deferential to the legislature." In re Pet, of
Thorell, 149 Wn.2d 724, 749, 72 P.3d 708 (2003). The rational basis test requires only
that the means employed by the statute be rationally related to legitimate state goals,
and not that the means be the best way of achieving that goal. Shawn P., 122 Wn.2d at
563. We "assume the existence of any necessary state of facts [we] can reasonably
conceive in determining whether a rational relationship exists between the challenged
law and a legitimate state interest." Amunrud v. Bd. of Appeals. 158 Wn.2d 208, 222,
143 P.3d 571 (2006).
A statute is presumed constitutional. Shawn P., 122 Wn.2d at 561. The party
challenging the statute must show the legislative classification is "purely arbitrary."
Thorell, 149 Wn.2d at 749. We will uphold the legislation unless the classification
" 'rests on grounds wholly irrelevant to the achievement of a legitimate state objective.'"
State v. Heiskell, 129 Wn.2d 113,123-24, 916 P.2d 366 (1996)3 (quoting Westerman v.
Carv. 125 Wn.2d 277, 294-95, 892 P.2d 1067 (1994)); Seelev, 132 Wn.2d at 795. The
party challenging the legislation " 'must show, beyond a reasonable doubt, that no state
of facts exists or can be conceived sufficient to justify the challenged classification.'"
Seelev. 132 Wn.2d at 795-96 (quoting State v. Smith, 93 Wn.2d 329, 337, 610 P.2d 869
(1980)).
We review questions of statutory interpretation de novo. State v. Conover. 183
Wn.2d 706, 711, 355 P.3d 1093 (2015). When interpreting a statute, our fundamental
objective is to determine and give effect to the intent of the legislature. State v.
Sweany, 174 Wn.2d 909, 914, 281 P.3d 305 (2012). To determine the plain meaning of
3 Internal quotation marks omitted.
No. 72637-4-1/7
a statute, we look to the text as well as " 'the context of the statute in which that
provision is found, related provisions, and the statutory scheme as a whole.'" State v.
Bruch, 182 Wn.2d 854, 860, 346 P.3d 724 (2015) (quoting State v. Jacobs. 154 Wn.2d
596, 600, 115 P.3d 281 (2005)). Statutes must be read together to achieve a
harmonious statutory scheme that maintains the integrity of the respective statutes.
State v. Jones. 172 Wn.2d 236, 243, 257 P.3d 616 (2011).
Lewis contends the DNA fee statute violates equal protection as applied to a
repeat felony offender. On its face, the statute does not draw such a distinction. But
Lewis asserts that after an offender's DNA is "collected, tested, and entered into the
database," imposition of another DNA fee on a repeat felony offender is not rationally
1
related to the legislative purpose of the statute. The plain and unambiguous language
of the DNA fee statute does not support the premise that the purpose of the fee is only
for collection, analysis, and testing of an offender's DNA.
The legislature has repeatedly found the DNA database is an important tool for
the investigation and prosecution of criminal cases, the exclusion of individuals subject
to investigation or prosecution, the detection of recidivist acts, and the identification and
location of missing and unidentified persons. Shelton. slip op. at 5.
In 2002, the legislature amended the DNA identification and database statute to
require every person convicted of a felony offense to submit a DNA sample for DNA
identification analysis. Laws of 2002, ch. 289, § 2. RCW 43.43.754(1) states, "A
biological sample must be collected for purposes of DNA identification analysis from:
(a) Every adult or juvenile individual convicted of a felony."
7
No. 72637-4-1/8
The legislature also adopted a new section that required the court to impose a
$100 DNA fee "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." Laws of
2002, ch. 289, § 4.4 The new section stated:
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, §4.
In 2008, the legislature amended the DNA fee statute to delete 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 the offender." Lawsof
2008, ch. 97, § 3. As amended, the plain and unambiguous language of former RCW
43.43.7541 (2008) states, "Every sentence imposed under chapter 9.94A RCW, for a
crime specified in RCW 43.43.754 must include a fee ofone hundred dollars."5 RCW
43.43.7541 requires the clerk of the court to transmit 80 percent of the fee "to the state
treasurer for deposit in the state DNA database account" and 20 percent "to the agency
4The 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).
5In 2011, the legislature amended RCW 43.43.7541 to state, in pertinent part, that the DNA fee is
"payable by the offender in the same manner as other assessments imposed." Laws of 2011, ch. 125, §
1.
8
No. 72637-4-1/9
responsible for collection of a biological sample." 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 DNA database account statute, RCW 43.43.7532, states expenditures from
the account "may be used only for creation, operation, and maintenance of the DNA
database under RCW 43.43.754."6 RCW 43.43.7532 states, in pertinent part:
The state DNA database account is created in the custody of the state
treasurer. All receipts under RCW 43.43.7541 must be deposited into the
account. Expenditures from the account may be used only for creation,
operation, and maintenance of the DNA database under RCW 43.43.754.
Only the chief of the Washington state patrol or the chief's designee may
authorize expenditures from the account.
The plain and unambiguous language of the DNA fee statute establishes that the
primary purpose of the DNA fee is to fund not only the creation of the DNA database,
but the ongoing operation and maintenance of the state DNA database. Accord State v.
Thornton. 188 Wn. App. 371, 374-75, 353 P.3d 642 (2015) (RCW 43.43.7541 "furthers
the purpose of funding for the state DNA database and agencies that collect samples");
State v. Brewster. 152 Wn. App. 856, 860, 218 P.3d 249 (2009) ("The DNA collection
fee serves to fund the collection of samples and the maintenance and operation of DNA
databases.").
6 Emphasis added.
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No. 72637-4-1/10
We hold that because there is a rational basis to impose the fee for every felony
sentence for the cost of collection as well as to fund the ongoing cost to operate and
maintain the DNA database, the DNA fee statute does not violate equal protection. See
State v. Johnson. No. 32834-1-111 (consol. with No. 32846-5-MI), 2016 WL 3124893, at
*2 (Wash. Ct. App. June 2, 2016) (rejecting equal protection claim that the mandatory
DNA fee statute, RCW 43.43.7541, results in a disparate impact on repeat offenders);
State v. Olivas, 122 Wn.2d 73, 94-95, 856 P.2d 1076 (1993) (holding there is a rational
relationship between the interest of the state under RCW 43.43.754 to investigate and
prosecute sex offenses and violent offenses and "the application of the statute to this
class of persons").
Order to Submit DNA Sample
Lewis also claims the trial court erred by ordering him to submit another DNA
sample. RCW 43.43.7541 requires every sentence imposed for a crime specified in
RCW 43.43.754 include a $100 DNA fee. However, the court has the discretion not to
require a felony offender to submit a subsequent DNA sample. RCW 43.43.754(2)
provides, "If the Washington state patrol crime laboratory already has a DNA sample
from an individual for a qualifying offense, a subsequent submission is not required to
be submitted."
The only evidence Lewis cites to support his claim that he has already submitted
a DNA sample is Appendix B to the judgment and sentence that lists his criminal history
from 1995 until 2004 for violation of the Uniform Controlled Substances Act. Nothing in
the record shows that Lewis actually submitted a DNA sample or that the Washington
State Patrol Crime Laboratory already has a DNA sample for a qualifying offense.
10
No. 72637-4-1/11
Because Lewis makes no showing that RCW 43.43.754(2) applies, the record does not
support his argument that the court erred by ordering him to submit a DNA sample for
testing. See Thornton. 188 Wn. App. at 374.
We affirm the judgment and sentence.
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WE CONCUR:
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