State of Washington v. Melissa Lynne Kerns ( 2016 )

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FILED
Aug. 9, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill I
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
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STATE OF WASHINGTON, ) i
) No. 33831-2-111
Respondent, )
V.
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MELISSA LYNN KERNS,
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UNPUBLISHED OPINION I
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Appellant. )
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Pennell, J. -Following Melissa Kems's convictions for attempting to elude a
police vehicle and hit and run (injury accident), the sentencing court imposed legal I
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financial obligations (LFOs) that included a mandatory $100 deoxyribonucleic acid
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(DNA) collection fee under RCW 43.43.7541. We affirm.
FACTS
A jury found Ms. Kerns guilty as charged of attempting to elude a police vehicle
and hit and run (injury accident). Her criminal history included 10 prior felony
convictions. The court rejected her request for a prison-based Drug Offender Sentencing
No. 33831-2-III
State v. Kerns
Alternative (DOSA) sentence upon determining she was not a suitable candidate. The
court imposed concurrent sentences of 29 and 60 months respectively for the crimes. The
court also imposed only mandatory LFOs, including a $500 victim assessment, a $200
criminal filing fee, and a $100 DNA collection fee. Ms. Kerns did not object to
imposition of any of the LFOs and did not raise any constitutional claims regarding the
DNA collection fee.
ANALYSIS
Ms. Kerns contends the $100 DNA collection fee mandated by RCW 43.43.7541
violates substantive due process and equal protection. Identical arguments have been
rejected by this court previously. State v. Lewis, No. 72637-4-I, 2016 WL 3570550(Wash. Ct. App. June 27, 2016); State v. Johnson, No. 32834-1-III, 2016 WL 3124893(Wash. Ct. App. June 2, 2016); State v. Mathers, 193 Wn. App. 913, _ P.3d _
(2016). We reject them here as well.
STATEMENT OF ADDITIONAL GROUNDS
In her statement of addit.ional grounds for review, Ms. Kerns makes two claims
that she was denied ineffective assistance of counsel: ( 1) counsel refused to call witnesses
and failed to present 911 records, hospital records or possible photos of recent
abuse/death threats-all of which she contends would have corroborated her duress
defense, and (2) counsel failed to use any past drug evaluations or request a new
drug/mental health evaluation to support her request for a DOSA sentence.
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No. 33831-2-III
State v. Kerns
To prevail on a claim of ineffective assistance of counsel, Ms. Kerns must
establish both deficient performance and resulting prejudice. Strickland v. Washington,
466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127
Wn.2d 322, 334-35, 899 P.2d 1251 (1995). But her complaints relate to materials
outside the trial court record. Ms. Kerns' s avenue for bringing claims based on evidence
outside the record is through a personal restraint petition, not an appeal. McFarland, 127
Wn.2d at 335.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Pennell, J.
WE CONCUR:
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