LED
COURT OF APPEALS 51V I
STATE OF WAS1-illtrITCH
2011 OCT -2 l'1112: 38
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 75445-9-1
Respondent,
DIVISION ONE
V.
HASSEN JAMES, UNPUBLISHED OPINION
Appellant. FILED: October 2, 2017
SPEARMAN, J. — A defendant's waiver of his jury trial right is valid if it is a
personal expression of waiver that is knowing, intelligent, and voluntary. Hassen
James indicated his desire to proceed with a bench trial orally and in writing
before the trial court informed him that he had the right to twelve jurors selected
at random. Because James did not object to this characterization of the jury
selection process, and cannot show that it had practical and identifiable
consequences in the proceeding, we decline to review this issue. We affirm.
FACTS
Hassen James faced trial on charges of second degree assault, unlawful
imprisonment, and witness tampering. At the outset of trial, James's attorney
informed the court that the defendant intended to waive his right to a jury trial.
While James was clear that "he does wish to proceed without a jury," he also
resisted signing a jury waiver. Verbatim Report of Proceedings(VRP) at 7. The
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court informed James that "the law requires that I obtain a written jury waiver
from you. So if you don't sign it, that's fine. But we're going to have a jury trial."
Id. Eventually, James agreed to sign the jury waiver. The waiver stated:
My attorney and I have discussed my right to a jury trial. I
understand that I have the right to have a jury of 12 decide my
case. I further understand that all 12 jurors would have to
agree that the elements of the crime(s) with which I have been
charged have been proved beyond a reasonable doubt before
I could be found guilty. After discussing this right with my
attorney, I have decided to waive my right to a jury trial.
Clerk's Papers(CP) at 11. After receiving the signed waiver, the court engaged
in the following colloquy:
THE COURT: Okay. Mr. James, I've received this document
entitled Waiver of Jury Trial. Is that your mark on it?
THE DEFENDANT: Yes.
THE COURT: Did you — do you understand everything contained in
this document?
THE DEFENDANT: Yes.
THE COURT: Do you know what a jury trial is?
THE DEFENDANT: Yes.
THE COURT: Do you understand, just to make sure, a jury trial
means that 12 citizens of King County selected at random would
decide whether the prosecutor has proved you guilty beyond a
reasonable doubt? Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Have you ever had a jury trial before?
THE DEFENDANT: Yes.
THE COURT: Okay. So you do know. You wish to give up your
right to a jury trial?
THE DEFENDANT: Yes.
THE COURT: And you understand that's a final decision, you will
not be able to change your mind in the future?
THE DEFENDANT: Yes.
THE COURT: Ifinding a knowing, voluntary and intelligent waiver
of the right to a jury trial and this matter will proceed to the bench.
VRP at 8-9.
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James was convicted of unlawful imprisonment—domestic violence and
fourth degree assault—domestic violence. The court ordered that he pay a $500
Victim's Penalty Assessment(VPA)and a $100 DNA collection fee.
James appeals.
DISCUSSION
James argues that his jury trial waiver was invalid because the trial court
represented that he had the right to twelve jurors selected at random. James
contends that this characterization was incorrect because the twelve jurors
chosen to decide his case would actually be selected through the voir dire
process and not at random. He argues that this alleged misinformation rendered
his waiver invalid. The State argues that James did not preserve this issue
because he did not object at trial.
Generally, we do not consider arguments raised for the first time on
appeal. RAP 2.5(a). But a defendant may appeal a manifest error affecting a
constitutional right, even if the issue was not raised before the trial court. RAP
2.5(a)(3). The defendant must identify a constitutional error and show that it had
practical and identifiable consequences in the proceeding. State v. Roberts, 142
Wn.2d 471, 500, 14 P.3d 713(2000).
Every criminal defendant has a constitutional right to a jury trial. State v.
Ramirez-Dominguez, 140 Wn. App. 233, 239, 165 P.3d 391 (2007)(citing City of
Pasco v. Mace, 98 Wn.2d 87,653 P.2d 618(1982)). Our review of a jury trial
waiver is de novo. Id. (citing State v. Treat, 109 Wn. App. 419, 427, 35 P.3d 1192
(2001)). A waiver is valid if the defendant acted knowingly, intelligently, and
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No. 75445-9-1/4
voluntarily. State v. Castillo-Murcia, 188 Wn. App. 539, 547, 354 P.3d 932
(2015), rev. denied, 184 Wn.2d 1027, 364 P.3d 120(2016). No colloquy or on-
the-record advice as to the consequences is required for waiver of a jury trial; all
that is required is a personal expression of waiver from the defendant. State v.
Stegall, 124 Wn.2d 719, 725, 881 P.2d 979(1994)(citing City of Bellevue v.
Acrey, 103 Wn.2d 203, 207-08, 691 P.2d 957(1984)).
James raises an issue affecting a constitutional right, but does not show
that it had a practical and identifiable consequence on the proceeding. There is
no evidence that the trial court's characterization of the jury selection process
impacted James's decision to waive his jury right. To the contrary, James had
already signed a written waiver of his jury right indicating that he understood the
nature of the right. And he already informed the judge that he understood the
waiver document. Because James cannot show that his asserted error impacted
his decision to waive his jury right, he cannot show that the error had practical
and identifiable consequences on the proceeding. We decline to review this issue
under RAP 2.5(a)(3).
Mandatory Fees
For the first time on appeal, James argues that the court unconstitutionally
imposed a mandatory $100 DNA collection fee and $500 VPA. James contends
that these mandatory fees violate his substantive due process rights because
they are not rationally related to a legitimate state interest.
We disagree. First, in State v. Shelton, 194 Wn. App. 660, 675, 378 P.3d
230(2016), rev. denied, 187 Wn.2d 1002, 386 P.3d 1088 (2017), we held that
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No. 75445-9-1/5
this type of challenge is not ripe for review until the State attempts to collect the
fee. There is no evidence in the record indicating that the State has sought to
collect this debt, so we decline to review the issue.
Even if James' claim were ripe, this court has expressly rejected his due
process arguments. In State v. Lewis, 194 Wn. App. 709, 720, 379 P.3d 129, rev.
denied, 186 Wn.2d 1025, 385 P.3d 118 (2016), we held that the DNA collection
fee is rationally related to a legitimate state interest and therefore does not
violate substantive due process. In State v. Seward, 196 Wn. App. 579, 586, 384
P.3d 620 (2016), rev. denied, 188 Wn.2d 1015, 396 P.3d 349(2017), we reached
the same conclusion with respect to the VPA.
Finally, we do not address James' arguments about costs on appeal
because the State does not intend to seek those costs.
Affirmed.
WE CONCUR:
f-1-I1" J
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