State Of Washington v. Norman Eugene Kelly ( 2018 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
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NORMAN EUGENE KELLY, UNPUBLISHED OPINION -•,.._ =,--it--
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Appellant. FILED: January 16, 2018 ND c—
LEACH, J. — For the first time on appeal, Norman Kelly challenges the
constitutionality of the mandatory crime victim penalty assessment(VPA) and the
deoxyribonucleic acid (DNA)testing fee as applied to him. He also challenges the
trial court's imposition of a DNA fee without considering the effect of his mental
health condition on his ability to pay. His constitutional challenge is not ripe for
review and the claimed error does not constitute manifest constitutional error under
RAP 2.5(a). Generally, the trial court must consider a defendant's ability to pay
even most mandatory legal financial obligations (LF05) when the defendant
suffers from a mental health condition. We affirm in part and remand to the trial
court for it to consider whether Kelly has a mental health condition that would
require it to determine whether he has the ability to pay the DNA fee.
BACKGROUND
In January 2016, the State charged Kelly with possession of
methamphetamine. The trial court ordered a competency evaluation. The
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evaluator determined that Kelly was competent. The evaluator also documented
Kelly's past head injuries, psychological diagnoses, prescription drug use, and
substance abuse issues. A jury convicted Kelly of possession. During the
sentencing hearing in May 2016, the trial court acknowledged that Kelly's mental
health issues, his homelessness, and chemical dependency all contributed to his
commission of the offense. The court imposed an 18-month sentence. In addition,
the court imposed the mandatory $500 VPA under RCW 7.68.035(1)(a) and the
mandatory $100 DNA testing fee under RCW 43.43.690. Kelly did not object. The
court waived all other costs and fees because it found Kelly was indigent. Kelly
challenges the trial court's imposition of the LFOs on appeal.
ANALYSIS
Substantive Due Process
For the first time on appeal, Kelly challenges the constitutionality of the
imposition of the mandatory VPA and the mandatory DNA fee on indigent
defendants at sentencing. He asserts that his claim is ripe for review and is
reviewable by this court as manifest constitutional error under RAP 2.5(a)(3). We
disagree.
Kelly asserts that the VPA and the DNA fee statutes violate substantive due
process when applied to defendants absent a showing that the defendants have
the ability or likely future ability to pay. We held in State v. Sheltonl that this
1 194 Wash. App. 660, 674, 378 P.3d 230 (2016), review denied, 187 Wash. 2d
1002 (2017); see also State v. Curry, 118 Wash. 2d 911, 917, 829 P.2d 166 (1992);
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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
Kelly's criminal debt. We reject Kelly's attempt to distinguish his case from Shelton
and adhere to that decision. Thus, we conclude that Kelly'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.2
Even if Kelly's argument were ripe for review and he could raise it for the
first time on appeal, it would fail under State v. Seward.3 Kelly acknowledges that
the State has a legitimate interest in imposing the VPA and the DNA fee,4 but he
contends that imposing LFOs on a defendant who lacks the ability to pay does not
rationally serve this interest. On the contrary, Seward held that the VPA and the
DNA fee are rationally related to the State's interest:
State v. Lewis, 194 Wash. App. 709, 715, 379 P.3d 129, review denied, 186 Wash. 2d
1025 (2016).
2 Shelton, 194 Wash. App. at 675.
3 196 Wash. App. 579, 384 P.3d 620(2016), review denied, 188 Wash. 2d 1015
(2017).
4 Seward, 196 Wash. App. at 584-85 ("[T]he DNA collection fee serves the
legitimate state interest of funding the collection, analysis, and retention of
convicted offenders' DNA profiles to facilitate future criminal
identifications. . .[T]he 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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First, imposing [the VPA and the DNA fees] 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 and the
DNA fees] on all offenders creates funding sources for these
purposes.
Second, imposing [the VPA and the DNA fees] 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 purposesPi
We agree with the majority in Seward that the VPA and the DNA fee statutes are
rationally related to legitimate state interests as applied to all offenders. Kelly's
constitutional challenge fails.
The DNA Testing Fee
For the first time on appeal, Kelly asserts that because he suffers from a
mental health condition, the trial court exceeded its authority by imposing the DNA
fee without first determining whether he had the ability to pay as required by
RCW 9.94A.777(1). The State contends that Kelly waived this issue when he did
not object to the imposition of LFOs by the trial court. "Unpreserved LFO errors
do not command review as a matter of right."6 But, under RAP 2.5(a), we exercise
our discretion to consider the issue.7
5 Seward, 196 Wash. App. at 585.
6 Statev. Blazina, 182 Wash. 2d 827, 833, 344 P.3d 680(2015).
7 See Blazina, 182 Wash. 2d at 834-35.
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The trial court imposed only mandatory LF0s, the $500 VPA and the $100
DNA fee.8 The court waived all discretionary fees and costs based on its finding
that Kelly was indigent. In general, a court must impose mandatory LFOs
regardless of the defendant's ability to pay.8 However, "RCW 9.94A.777(1)
requires that a trial court determine whether a defendant who suffers from a mental
health condition has the ability to pay any LF0s, mandatory or discretionary."10
(1) Before imposing any legal financial obligations upon a defendant
who suffers from a mental health condition, other than restitution or
the victim penalty assessment under RCW 7.68.035, a judge must
first determine that the defendant, under the terms of this section,
has the means to pay such additional sums.
(2) For the purposes of this section, a defendant suffers from
a mental health condition when the defendant has been diagnosed ,
with a mental disorder that prevents the defendant from participating
in gainful employment, as evidenced by a determination of mental
disability as the basis for the defendant's enrollment in a public
assistance program, a record of involuntary hospitalization, or by
competent expert evaluation.1111
Although the State concedes that Kelly suffers from "some mental health
issues," it asserts that Kelly does not have a mental health condition because his
competency evaluator questioned whether he was "malingering.',12 Kelly's
competency evaluation, however, shows Kelly suffers from mental health issues
8 RCW 7.68.035(1)(a)(VPA); RCW 43.43.7541 (DNA fee); State v. Lundy,
176 Wash. App. 96, 102-03, 308 P.3d 755 (2013).
9 Lundy, 176 Wash. App. at 102-03.
10 State v. Tedder, 194 Wash. App. 753, 756, 378 P.3d 246 (2016).
11 RCW 9.94A.777.
12 Included in the competency evaluation is a note from a psychiatrist who
treated Kelly previously; the note states that Kelly has "been known for
malingering." Kelly's evaluator also observed that Kelly's memory difficulties were
"possibly exaggerated" by Kelly.
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including past head injuries, multiple psychological diagnoses, and substance
abuse issues.13 And the record contains no evidence that Kelly has worked since
2005 when a vehicle accident left him physically disabled. The trial court observed
that Kelly's "mental health circumstances" contributed to his commission of the
offense; however, the court did not consider whether Kelly had a mental health
condition as defined by RCW 9.94A.777(2) or whether Kelly had the ability to pay
the DNA fee as required by RCW 9.94A.777(1). We remand for consideration of
whether Kelly has a mental health condition and, if so, whether he has the ability
to pay the DNA fee.
CONCLUSION
We affirm in part and remand for consideration of whether Kelly has a
mental health condition that would require the court to determine whether he can
pay the DNA fee.
WE CONCUR:
13 The evaluator offered the following diagnostic impression: amphetamine
use disorder, cannabis use disorder, history of alcohol use disorder, unspecified
depressive disorder, unspecified personality disorder with antisocial and borderline
traits, and posttraumatic brain injury.
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