IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 75118-2-1
Respondent,
DIVISION ONE
V.
JUSTIN WALTER WOODARD, UNPUBLISHED OPINION
Appellant. FILED: September 25, 2017
PER CURIAM. Justin Woodard appeals the victim penalty assessment
(VPA)and the deoxyribonucleic acid (DNA)collection fee imposed following his
conviction for aggravated domestic violence assault in the second degree. For
the first time on appeal, he contends the statutes authorizing these mandatory
financial obligations are 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),1 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. Curry,
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. 75118-2-1/2
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 Woodard's claim under RAP 2.5(a) in the
absence of manifest constitutional error, the claim is not ripe and Woodard 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 Woodard'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). Woodard'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).
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" "[u]ntil the State attempts
to enforce collection of the... fee or impose sanctions for failure to pay."); accord
Lewis, 194 Wn. App. at 715.
2