State Of Washington v. Leo Bunker III ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
July 6, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 47614-2-II
Respondent,
v. UNPUBLISHED OPINION
LEO BRITTON BUNKER, III,
Appellant.
MAXA, A.C.J. – Leo Bunker appeals the sentencing court’s imposition of a mandatory
$100 DNA (deoxyribonucleic acid) fee under RCW 43.43.7541. We hold that RCW 43.43.7541
does not violate substantive due process when applied to defendants who do not have the current
or likely future ability to pay the DNA fee and does not violate equal protection when applied to
repeat felony offenders who have to pay the DNA fee again even though that offender’s DNA
already has been collected. Accordingly, we affirm the sentencing court’s imposition of the
DNA fee.
FACTS
A jury found Bunker guilty of two counts of second degree rape, one count of
harassment-threat to kill, and one count of violation of a protection order. On appeal, this court
remanded for resentencing. The State recognized that given Bunker’s ongoing medical
conditions, his present ability to pay legal financial obligations (LFOs) was doubtful. Bunker’s
defense counsel stated that Bunker had little, if any, ability to pay any LFOs.
No. 47614-2-II
The sentencing court did not impose any discretionary LFOs, but ordered Bunker to pay
mandatory LFOs, including a $100 DNA fee. Bunker appeals the imposition of the DNA fee.
ANALYSIS
Bunker argues that the imposition of the DNA fee under RCW 43.43.7541 violates
substantive due process and equal protection. We reject Bunker’s substantive due process
challenge because RCW 43.43.7541 is rationally related to the legislature’s interest in funding a
DNA database. We reject Bunker’s equal protection claim because he fails to demonstrate that
repeat felony offenders are treated differently than first time felony offenders or that RCW
43.43.7541 intentionally discriminates against him, and because imposing the DNA fee is
rationally related to the State’s interest in funding a DNA database.
A. STANDARD OF REVIEW
We review constitutional challenges de novo. State v. Schmeling, 191 Wash. App. 795,
798, 365 P.3d 202 (2015). A statute is presumed constitutional, and the party challenging it has
the heavy burden of convincing the court that there is no reasonable doubt that the statute is
unconstitutional. Id.
B. MANDATORY DNA FEE
RCW 43.43.754(1)(a) requires that a biological sample be collected for DNA analysis
from every adult or juvenile convicted of a felony or a series of other crimes. To pay for the
DNA collection, RCW 43.43.7541 requires the imposition of a $100 fee.
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. . . . The clerk of the court
shall transmit eighty percent of the fee collected to the state treasurer for deposit
in the state DNA database account created under RCW 43.43.7532, and shall
2
No. 47614-2-II
transmit twenty percent of the fee collected to the agency responsible for
collection of a biological sample from the offender as required under RCW
43.43.754.
Former RCW 43.43.7541 (2011).
RCW 43.43.7541 expressly states that every felony sentence “must” include a $100 DNA
fee as a court-ordered LFO. Therefore, the DNA collection fee is a mandatory LFO. State v.
Kuster, 175 Wash. App. 420, 424, 306 P.3d 1022 (2013). For DNA fees and other mandatory
LFOs, “the legislature has directed expressly that a defendant’s ability to pay should not be taken
into account.” State v. Lundy, 176 Wash. App. 96, 102, 308 P.3d 755 (2013).
C. SUBSTANTIVE DUE PROCESS CHALLENGE
Bunker argues that RCW 43.43.7541 violates substantive due process when a DNA fee is
imposed on a defendant who does not have the present or future ability to pay the fee. We
disagree.
1. Legal Principles
The Fifth and Fourteenth Amendments to the United States Constitution and article I,
section 3 of the Washington Constitution mandate that no person may be deprived of life, liberty,
or property without due process of law. “Substantive due process protects against arbitrary and
capricious government action.” Amunrud v. Bd. of Appeals, 158 Wash. 2d 208, 218-19, 143 P.3d
571 (2006). An action violates substantive due process if a deprivation of life, liberty or property
is substantively unreasonable or is not supported by legitimate justification. Nielsen v. Dep’t of
Licensing, 177 Wash. App. 45, 53, 309 P.3d 1221 (2013).
The level of review we apply to a due process challenge depends on the nature of the
right involved. Amunrud, 158 Wash. 2d at 219. We apply a strict scrutiny standard when state
3
No. 47614-2-II
action interferes with a fundamental right. Id. at 220. But we apply a rational basis standard
when a fundamental right is not affected. Id. at 222.
Here, RCW 43.43.7541 mandates the payment of a fee. Bunker concedes that payment
of a fee does not involve a fundamental right. See In re Pers. Restraint of Metcalf, 92 Wash. App.
165, 176-77, 963 P.2d 911 (1998) (applying rational basis review to a prisoner’s interest in
money). Therefore, we apply rational basis review.
Under rational basis review, we determine whether a rational relationship exists between
the challenged law and a legitimate state interest. Amunrud, 158 Wash. 2d at 222. In making this
determination, “a court may assume the existence of any necessary state of facts which it can
reasonably conceive.” Id.
The rational basis standard is highly deferential to the challenged action. Nielsen, 177
Wash. App. at 56. “The rational basis test is the most relaxed form of judicial scrutiny.”
Amunrud, 158 Wash. 2d at 223.
2. Application of Curry and Lundy
In State v. Curry, the Supreme Court examined the constitutionality of the mandatory
victim penalty assessment under RCW 7.68.035(1). 118 Wash. 2d 911, 917, 829 P.2d 166 (1992).
The court did not identify the constitutional basis of the challenge, but stated that the defendants
argued that “the statute could operate to imprison them unconstitutionally in the future if they are
unable to pay the penalty.” Id. The court determined that no defendant would be incarcerated
for the inability to pay the assessment unless nonpayment was willful. Id. at 918. Therefore, the
court held that “the victim penalty assessment is neither unconstitutional on its face nor as
applied to indigent defendants.” Id.
4
No. 47614-2-II
This court in Lundy cited to Curry in discussing the imposition of mandatory LFOs,
including the DNA fee. 176 Wash. App. at 102-03. This court stated, “[O]ur courts have held that
these mandatory obligations are constitutional so long as ‘there are sufficient safeguards in the
current sentencing scheme to prevent imprisonment of indigent defendants.’ ” Id. (quoting
Curry, 118 Wn.2d at 918). Relying on Curry and Lundy, this court recently rejected a
defendant’s claim that the DNA fee violated his substantive due process rights. State v. Mathers,
No. 47523-5, 2016 WL 2865576, *7 (Wash. Ct. App. May 10, 2016).
These cases suggest that imposition of the DNA fee is not a manifest error based on
substantive due process. But in none of these cases is there any indication that the defendant
made the argument Bunker asserts – that imposing a mandatory fee on offenders who are unable
to pay the fee does not rationally serve the legislature’s interest in funding a DNA database.
Therefore, we must conduct a rational basis analysis of the DNA fee in light of this argument.
3. Rational Basis Analysis
In RCW 43.43.753, the legislature expressly found that “DNA databases are important
tools in criminal investigations, in the exclusion of individuals who are the subject of
investigations or prosecutions, and in detecting recidivist acts.” The legislature concluded that
“it is in the best interest of the state to establish a DNA database and DNA data bank containing
DNA samples submitted by persons convicted of felony offenses and other crimes” designated
by statute. RCW 43.43.753. Eighty percent of the DNA fee mandated by RCW 43.43.7541
must be deposited into an account to be used only for the creation, operation, and maintenance of
a DNA database under RCW 43.43.7532. Under this statutory scheme, the clear purpose of the
mandatory DNA fee is to help fund the creation, operation, and maintenance of a DNA database.
5
No. 47614-2-II
See State v. Thornton, 188 Wash. App. 371, 375, 353 P.3d 642 (2015); State v. Brewster, 152 Wn.
App. 856, 860, 218 P.3d 249 (2009).
Bunker acknowledges that funding the DNA database is a legitimate state interest.
However, he argues that imposing a mandatory fee on offenders who are unable to pay the fee
does not rationally serve that interest.1
We find that RCW 43.43.7541 is rationally related to the legislature’s legitimate interest
in funding a DNA database on two levels. First, imposing DNA fees on all felony offenders
without assessing their ability to pay is rationally related to funding a DNA database because
although some offenders may be unable to pay the DNA fee, some offenders will be able to pay
it. So the imposition of DNA fees on all offenders creates a funding source for the DNA
database.
Second, imposing DNA fees on offenders like Bunker who are indigent at the time of
sentencing is rationally related to funding a DNA database because that indigency may not
always exist. We can conceive of a situation in which an offender who is indigent at sentencing
will be able to pay the DNA fee at some future time. So it is not unreasonable to believe that
imposing DNA fees on indigent offenders would result in some funding for the DNA database.
We hold that imposition of the mandatory DNA fee under RCW 43.43.7541 does not
violate substantive due process.
1
Bunker highlights that because under RCW 43.43.7541 the DNA fee is paid only after all other
LFOs have been satisfied, that fee would be the least likely LFO to be paid by an indigent
offender.
6
No. 47614-2-II
D. EQUAL PROTECTION CHALLENGE
Bunker argues that RCW 43.43.7541 violates equal protection because repeat felony
offenders have to pay the DNA fee again even though that offender’s DNA already has been
collected. We disagree.
1. Legal Principles
The Fourteenth Amendment to the United States Constitution and article I, section 12 of
the Washington Constitution guarantee equal protection under the law. “Equal protection
requires that similarly situated individuals receive similar treatment under the law.” Harris v.
Charles, 171 Wash. 2d 455, 462, 256 P.3d 328 (2011).
The threshold requirement of an equal protection challenge is that a defendant “must
establish that he received disparate treatment because of membership in a class of similarly
situated individuals and that the disparate treatment was the result of intentional or purposeful
discrimination.” State v. Osman, 157 Wash. 2d 474, 484, 139 P.3d 334 (2006).
As with substantive due process, the appropriate level of review in equal protection
claims depends on the nature of the classification or the rights involved. State v. Hirschfelder,
170 Wash. 2d 536, 550, 242 P.3d 876 (2010). We apply a strict scrutiny standard when state action
involves suspect classifications like race, alienage, or national origin, as well as when the state
action burdens fundamental rights. Id. Intermediate scrutiny applies for semi-suspect
classifications and important rights. Id. Otherwise, we apply rational basis review. Id.
Here, Bunker concedes that he is not a member of a suspect or semi-suspect class and
that the payment of a fee does not involve a fundamental or important right. Therefore, we apply
rational basis review.
7
No. 47614-2-II
Rational basis review is a highly deferential standard, and this court will uphold a statute
under this standard unless its provisions are wholly irrelevant to the achievement of legitimate
state objectives. In re Det. of Stout, 159 Wash. 2d 357, 375, 150 P.3d 86 (2007). Rational basis
requires only that the statute’s means be rationally related to a legitimate state goal, and not that
the means be the best way of achieving that goal. State v. Manussier, 129 Wash. 2d 652, 673, 921
P.2d 473 (1996).
2. No Unequal Treatment
Bunker argues that within the group of all felony offenders, the class of felony offenders
who have been convicted more than once are treated differently than first time offenders because
repeat offenders have to pay the DNA fee even though their DNA already has been collected.
We reject this argument for three reasons.
First, RCW 43.43.7541 does not treat repeat offenders differently than first time
offenders. Under RCW 43.43.7541, every felony sentence must include the DNA fee. This
means that under this statute all felony offenders are treated the same. A claimant must be
treated differently from others who were similarly situated to prevail on an equal protection
challenge. Osman, 157 Wash. 2d at 485. Bunker actually is seeking unequal treatment, not equal
treatment. He claims that repeat offenders should be treated differently and relieved from
payment of the DNA fee because they do not need to have their DNA collected more than once.
This type of policy argument can only be resolved by the legislature, rather than this court.
8
No. 47614-2-II
Second, even if RCW 43.43.7541 has a disparate impact on repeat offenders, Bunker still
must provide evidence of intentional or purposeful discrimination. Id. at 484; see also State v.
Johnson, No. 32834-1, 2016 WL 3124893, *2 (Wash. Ct. App. June 2, 2016). He has not done
so here.
Third, the imposition of the DNA fee does not violate equal protection under rational
basis review. Bunker assumes that the only purpose of the DNA fee is to fund the collection and
analysis of a particular defendant’s DNA. But RCW 43.43.7541 is not so limited. RCW
43.43.7532 provides that DNA fees are used for the operation and maintenance of a DNA
database, not simply to collect DNA from particular defendants. The collection of DNA fees
from all defendants – even repeat offenders who already have provided their DNA – is rationally
related to the legislature’s interest in funding the operation and maintenance of the DNA
database.
We hold that imposition of the mandatory DNA fee under RCW 43.43.7541 does not
violate equal protection.
CONCLUSION
We affirm the sentencing court’s imposition of the mandatory DNA fee under RCW
43.43.7541.
9
No. 47614-2-II
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, A.C.J.
We concur:
WORSWICK, J.
LEE, J.
10