IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON Its"
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STATE OF WASHINGTON, rn
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No. 75361-4-1
Respondent, > rn
V. DIVISION ONE
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ABDULLAH HASSAN EKRIEM, UNPUBLISHED OPINION .&""' CD —
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Appellant. FILED: September 18, 2017
LEACH, J. — For the first time on appeal, Abdullah Ekriem challenges the
constitutionality of the mandatory victim penalty assessment(VPA) as applied to
him. This challenge is not ripe for review, and the claimed error does not constitute
manifest constitutional error under RAP 2.5(a). We affirm.
Background
The State charged Ekriem with violation of the Uniform Controlled
Substances Actl for possessing heroin.2 Ekriem pleaded guilty to a reduced
charge of solicitation to possess heroin.3 At sentencing, the court imposed a
mandatory $500 VPA but waived all discretionary fees.4
1 Ch. 69.50 RCW.
2 RCW 69.50.401(1), (2)(a).
3 RCW 9A.28.030; RCW 69.50.4013.
4 RCW 7.68.035.
No. 75361-4-1 / 2
Discussion
Ekriem claims for the first time on appeal that the imposition of the VPA
under RCW 7.68.035 violates substantive due process as applied to him. We held
in State v. Shelton5 that this challenge is not ripe for review until the State attempts
to collect the fee because the facts relevant to the claim are not fully developed.
No evidence in the record indicates enforced collections, sanctions, or other
negative consequences of Ekriem's criminal debt. We adhere to our decision in
Shelton and conclude that Ekriem's substantive due process claim is not ripe.
Further, as we held in Shelton, a claimed due process error cannot constitute
manifest constitutional error subject to review under RAP 2.5(a)(3) until the State
seeks to enforce collection or imposes a sanction for failure to pay.6
Even if Ekriem's argument was ripe for review and could be raised for the
first time on appeal, it would fail under State v. Seward.7 Ekriem acknowledges
that the State has a legitimate interest in imposing the VPA fee.5 He contends,
however, that imposing legal financial obligations on a defendant who lacks the
ability to pay does not rationally serve this interest. But Seward held that a
mandatory VPA is rationally related to the State's interest:
5 194 Wn. App. 660, 674, 378 P.3d 230 (2016), review denied, 187 Wn.2d
1002 (2017); see also State v. Curry, 118 Wn.2d 911, 917, 829 P.2d 166 (1992);
State v. Lewis, 194 Wn. App. 709, 715, 379 P.3d 129, review denied, 186 Wn.2d
1025 (2016).
6 Shelton, 194 Wn. App. at 675.
7 196 Wn. App. 579, 384 P.3d 620 (2016), review denied, 188 Wn.2d 1015
(2017).
8 Seward, 196 Wn.App. at 585("the VPA serves the legitimate state interest
of funding comprehensive programs to encourage and facilitate testimony by
victims and witnesses of crimes").
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No. 75361-4-1/ 3
First, imposing [the VPA] on all felony offenders without first
considering their ability to pay is rationally related to legitimate state
interests because even though some offenders may be unable to
pay, some will. So the imposition of [the VPA] on all offenders
creates funding sources for these purposes.
Second, imposing [the VPA] on offenders who may be
indigent at the time of sentencing is also rationally related to funding
these purposes because the defendant's indigency may not always
exist. We can conceive of situations in which an offender who is
indigent at the time of sentencing will be able to pay the fees and
assessments in the future. So it is not unreasonable to believe that
imposing these fees and assessments on all indigent offenders
would result in some funding for these purposes.[91
We agree that the two statutes are rationally related to legitimate state interests as
applied to all offenders. Finally, we do not address Ekriem's arguments about
costs on appeal because the State does not intend to seek these costs.
Conclusion
We affirm.
WE CONCUR:
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9 Seward, 196 Wn. App. at 585.
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