FILED
July 19, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
THE STATE OF WASHINGTON, )
) No. 33548-8-111
Respondent, )
)
v. )
) UNPUBLISHED OPINION
JUSTIN TAYLOR,
)
)
Appellant.
KORSMO, J. - Following Justin Taylor's convictions for possession of a stolen
motor vehicle and second degree possession of stolen property, the sentencing court
imposed legal financial obligations (LFOs) that included a mandatory $100
deoxyribonucleic acid (DNA) collection fee under RCW 43.43.7541. Mr. Taylor
contends the mandatory DNA collection fee violates substantive due process and equal
protection principles. We decline to address these issues raised for the first time on
appeal, and affirm the judgment and sentence.
FACTS AND PROCEDURAL HISTORY
A jury found Mr. Taylor guilty as charged of possession of a stolen motor vehicle
and second degree possession of stolen property. His criminal history included 16 prior
felony convictions. The court imposed concurrent sentences of 57 and 29 months
No. 33548-8-III
State v. Taylor
respectively for the crimes. The court also imposed only mandatory LFOs, including a
$500 victim assessment, a $200 criminal filing fee, a $100 DNA collection fee, and $500
victim restitution. Mr. Taylor did not object to imposition of any of the LFOs and did not
raise any constitutional claims regarding the DNA collection fee.
DISCUSSION
Mr. Taylor first contends the $100 DNA collection fee mandated by RCW
43.43.7541 violates substantive due process when applied to defendants who lack ability,
to pay the fee. The statute reads in relevant 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. For all other sentences, the
fee is payable by the offender in the same manner as other assessments
imposed.
RCW 43.43.7541. Mr. Taylor concedes the State of Washington possesses a legitimate
state interest to fund the DNA database, but he contends that assessing the fee against
defendants who cannot pay does not rationally serve that interest.
A party generally may not raise a new argument on appeal that the party did not
present to the trial court. RAP 2.5(a); In re Det. ofAmbers, 160 Wn.2d 543, 557 n.6, 158
P.3d 1144 (2007). A party may, however, raise a manifest error affecting a constitutional
right for the first time on appeal. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d
1251 (1995).
2
No. 33548-8-III
State v. Taylor
We decline to address Mr. Taylor's argument because the record in the trial court
is insufficiently developed to support an inability to pay $100. Therefore, in accordance
with our holding in State v. Stoddard, 192 Wn. App. 222, 228, 366 P.3d 474 (2016), Mr.
Taylor does not show manifest constitutional error. He waived his due process challenge
to the DNA fee by failing to raise it in the trial court. We also note that this court does
not address the constitutionality of a recoupment order before collection action or
imposition of a penalty for nonpayment. State v. Blank, 131 Wn.2d 230, 241-42, 930
P.2d 1213 (1997) (constitutional challenge turns on defendant's financial circumstances
at time of recoupment).
Mr. Taylor next contends RCW 43.43.7541 violates equal protection because it
irrationally requires some defendants who were previously sentenc.ed to pay a DNA
collection fee multiple times, while others need only pay once. Mr. Taylor also did not
make this argument in the trial court and the record does not contain the necessary details
to resolve it. In accordance with Stoddard and RAP 2.5(a), we decline to address his
equal protection claim for the first time on appeal.
Mr. Taylor finally contends the court abused its discretion by ordering him to
submit to a DNA collection when he has done so previously. He points to RCW
43.43.754(2) (subsequent submission is not required if the state patrol crime laboratory
already has the individual's DNA sample) and asserts there is no evidence that his DNA
was not already collected in prior criminal convictions. We find no error.
3
No. 33548-8-III
State v. Taylor
Mr. Taylor's judgment and sentence form specified a DNA sample need not be
collected if the Washington State Patrol was already in possession of a sample. This is
consistent with Washington law. See RCW 43.43.754(l)(a), (2). The trial court did not
breach the statute, particularly given that Mr. Taylor supplies no evidence for his
contention that he already submitted to a DNA collection. See State v. Thornton, 188
Wn. App. 371, 373-74, 353 P.3d 642 (2015) (contention reviewable only if record
contains information indicating state patrol crime lab already has defendant's DNA on
file).
Affirmed.
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:
Lawrence-Berrey, J.
j
4