State Of Washington, V. Jacob Timothy Clement

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) No. 82476-7-I

)

Respondent, ) DIVISION ONE

)

v. ) UNPUBLISHED OPINION

)

JACOB TIMOTHY CLEMENT, )

)

Appellant. )

)

HAZELRIGG, J. — Jacob T. Clement challenges the imposition of the

mandatory DNA1 collection fee and Crime Victim Assessment (CVA) at sentencing

without an inquiry into his individual ability to pay. Clement argues imposition of

these mandatory fees violates our state constitution’s excessive fines clause,

however he fails to engage with binding precedent which holds that both the DNA

collection fee and CVA are non-punitive, such that the excessive fines clause does

not apply. In light of that established authority, we affirm.

FACTS

Jacob Clement was charged with robbery in the first degree arising out of

an incident wherein he held a knife to a man’s throat to obtain 20 dollars. After

spending approximately a year in jail as the case was pending, Clement entered a

guilty plea to an amended charge of robbery in the second degree. The agreed

1 Deoxyribonucleic acid.

Citations and pinpoint citations are based on the Westlaw online version of the cited material.

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recommendation of the parties, pursuant to the plea agreement, was a sentence

of six months of incarceration, payment of restitution in an amount to be

determined2, a condition of no contact with the victim and the mandatory $500

crime victim assessment and $100 DNA collection fees. The court imposed a jail

term of six months’ confinement (with credit for time served) and the other

conditions proposed under the joint recommendation. Only the two mandatory

fees were imposed.

Clement timely appealed.

ANALYSIS

I. Mandatory Legal Financial Obligations (LFOs)

Clement argues that the imposition of both the $500 Crime Victim

Assessment (CVA) and $100 DNA collection fee as mandatory fees violates article

I, section 14 of our state constitution, specifically that the court erred in imposing

them at sentencing without consideration of Clement’s individual ability to pay.3

Both the DNA collection fee and CVA are mandatory and do not require the

sentencing court to consider an individual’s ability to pay. State v. Seward, 196

Wn. App. 579, 587, 384 P.3d 620 (2016); State v. Mathers, 193 Wn. App. 913, 917

2 The deputy prosecutor later confirmed at sentencing that the State was not seeking

restitution.

3 The State argues that this is invited error given that the issue arises from a plea

agreement. However, the plea agreement signed by Clement only referenced fees in the boilerplate

language and noted that they were mandatory. They were expressly listed on the statement of

defendant on plea of guilty, but following the preprinted language stating “The prosecuting attorney

will make the following recommendation to the judge.” While the State is correct that we will strictly

enforce the doctrine of invited error, case law is clear that there must be some affirmative act by

the appellant for the doctrine to apply. Here, the failure to object to fees properly described in the

plea agreement and judgment and sentence as mandatory, does not trigger rejection of Clement’s

challenge as invited error. See State v. Weaver, 198 Wn.2d 459, 465, 496 P.3d 1183 (2021).

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n.1, 928–29, 376 P.3d 1163 (2016). These fees must be imposed “irrespective of

a defendant’s ability to pay.” State v. Lundy, 176 Wn. App. 96, 103, 308 P.3d 755

(2013). As of June 7, 2018, non-restitution legal financial obligations do not accrue

interest. RCW 10.82.090. Additionally, the DNA fee is not to be imposed if a

sample has already been collected from an individual because of a prior conviction.

State v. Ramirez, 191 Wn.2d 732, 747, 426 P.3d 714 (2018).

As Clement’s challenge is grounded in our state’s excessive fines clause,

we must begin by determining whether either the DNA collection fee or CVA are

punitive before proceeding to the full constitutional analysis. City of Seattle v.

Long, 198 Wn.2d 136, 163, 493 P.3d 94 (2021) (the first step in an excessive fines

inquiry is whether the state action constitutes punishment).

A. DNA Collection Fee

RCW 43.43.7541, which authorizes the DNA collection fee, states in

relevant part:

Every sentence imposed for a crime specified in RCW

43.43.754 must include a fee of one hundred dollars unless the state

has previously collected the offender’s DNA as a result of a prior

conviction. The fee is a court-ordered legal financial obligation as

defined in RCW 9.94A.030 and other applicable law.

The State accurately cites to State v. Brewster which expressly held “[t]he DNA

collection fee is not punitive.” 152 Wn. App. 856, 861, 218 P.3d 249 (2009). In

regard to the intent of the legislature in enacting the DNA fee, this court concluded

that:

The DNA collection fee serves to fund the collection of samples and

the maintenance and operation of DNA databases. The legislature

has repeatedly found that DNA databases are important tools in

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criminal investigations, in the exclusion of individuals who are the

subject of investigation or prosecution, and in detecting recidivist

acts. The databases also facilitate the identification of missing

persons and unidentified human remains. These are no punitive

purposes.

Id. at 860.

The Brewster court went on to reject the claim that the DNA fee statute was

so punitive as to negate legislature’s regulatory intent. Id. at 860–61. Division II

of this court recently reiterated that the DNA fee (and CVA) are not punitive. State

v. Mathers, 193 Wn. App. 913, 920, 376 P.3d 1163 (2016). By following our

precedent, we similarly conclude that the DNA fee is non punitive.

B. Crime Victim Assessment

The CVA4 is derived from RCW 7.68.035, which states in relevant portion:

(1)(a) When any person is found guilty in any superior court

of having committed a crime, except as provided in subsection (2) of

this section, there shall be imposed by the court upon such convicted

person a penalty assessment. The assessment shall be in addition

to any other penalty or fine imposed by law and shall be five hundred

dollars for each case or cause of action that includes one or more

convictions of a felony or gross misdemeanor and two hundred fifty

dollars for any case or cause of action that includes convictions of

only one or more misdemeanors.5

We begin by acknowledging our court’s opinion in Mathers which clearly provided

“[t]he [CVA] fee is also not punitive in nature.” 193 Wn. App. at 920. This is

supported by our Supreme Court’s analysis in State v. Humphrey. 139 Wn.2d 53,

983 P.2d 1118 (1999). In Humphrey, the Supreme Court clarified that the

4 Trial courts, and different panels of this court, alternately refer to the mandatory fee

imposed pursuant to RCW 7.68.035 as the “crime victim assessment,” CVA, or “victim penalty

assessment,” VPA.

5 The CVA imposed in Clement’s case was in the amount of $500 because the crime of

conviction, robbery in the second degree, is a Class B felony. RCW 9A.56.210.

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amendment increasing the CVA from $100 to $500 established a new liability, not

a penalty. Id. at 62. Its comment in Humphrey that the CVA does not “constitute

punishment for the purposes of ex post facto determination” indicates the

assessment is properly characterized as non-punitive in our constitutional review

as to the excessive fines clause. Id. at 62, n.1.

While Clement suggests in passing that any case law declaring either of

these fees to be non-punitive should be disregarded because it predates the

holding in Long, he fails to offer argument as to how this court could disregard

binding legal precedent. “A Washington Supreme Court decision is binding on all

lower courts in the state.” Mathers, 193 Wn. App. at 923 (citing 1000 Va. Ltd.

P’ship v. Vertecs Corp., 158 Wn.2d 566, 146 P.3d 423 (2006)). In Long, the

Supreme Court expressly found that the impoundment fee for violating a parking

law was partially punitive, which allowed the court to proceed with consideration of

the excessive fines challenge. 198 Wn.2d at 163. However, the body of case law

that has examined both the CVA and DNA collection fees has not found either to

be partially punitive6, which is a critical distinction in the context of excessive fines

clause analysis.

6 Uniform collection of the CVA in every criminal conviction is for the purpose of funding

“support of comprehensive programs to encourage and facilitate testimony by the victims of crimes

and witnesses to crimes.” RCW 7.68.035(4).

The DNA collection fee is to recover the cost of collecting and analyzing DNA samples for

entry into the state DNA database. Under the plain language of the DNA collection fee statute, it is

not to be imposed where the state has previously collected a DNA sample from the same individual.

RCW 43.43.7541.

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II. Excessive Fines

Though Clement attempts to argue that our State’s excessive fine clause is

more protective than its federal counterpart in the Eighth Amendment to the United

States Constitution, he fails to provide sufficient analysis to persuade us. Both

clauses use nearly identical language; the federal constitution provides,

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted” and the Washington State Constitution states,

“Excessive bail shall not be required, excessive fines imposed, nor cruel

punishment inflicted.” U.S. CONST. amend. VIII; WASH. CONST. art. I, § 14.

Additionally, our state’s highest court recently held that, in the absence of Gunwall7

analysis from the parties, the language in our state constitution as to excessive

fines is identical to that contained in the federal constitution. See Long, 198 Wn.2d

at 159 (“Absent support for an independent analysis, we view article I, section 14

[of the Washington State Constitution] and the Eighth Amendment as coextensive

for the purposes of excessive fines.”). The Due Process Clause of the Fourteenth

Amendment to the United States Constitution makes the Eighth Amendment

applicable to the states. Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532

U.S. 424, 433–34, 121 S. Ct. 1678, 149 L. Ed. 2d 674 (2001).

Clement undertakes a cursory Gunwall analysis in his opening brief; setting

out the test and simply asserting that our state clause is more protective. However,

he offers no authority as to why we should depart from the determination in Long

7 State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986).

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in light of the identical language in both constitutions. 198 Wn.2d at 159. The

Supreme Court made clear in Long:

When a party urges a different or more protective interpretation

under our state constitution for the first time, we expect supportive

briefing, particularly when the language of that provision is identical

to the United States constitutional provision.

Id. Despite this directive, Clement focuses his argument on how article I, section

14 generally has been more protective than the Eighth Amendment, by offering

analysis as to the cruel punishment clause, rather than the excessive fines clause.

See State v. Roberts, 142 Wn.2d 471, 506, 14 P.3d 713 (2000) (“Washington State

Constitution’s cruel punishment clause often provides greater protection than the

Eighth Amendment.”). However, the language in the cruel punishment clauses of

the federal and state constitutions is notably different, unlike the nearly identical

language used as to excessive fines. Clement only provides us with conclusory

statements as to the Gunwall test upon which he bases his claim of greater state

protection. We decline his invitation to undertake such inquiry after he has failed

to engage in the proper analysis specific to his claim. See State v. Dhaliwal, 150

Wn.2d 559, 575, 79 P.3d 432 (2003) (Supreme Court declining to reach whether

state constitution provides greater protection than Sixth Amendment to the United

States Constitution because the appellant failed to provide analysis applicable to

Gunwall factors).

“The excessive fines clause ‘limits the government’s power to extract

payments, whether in cash or in kind, as punishment for some offense.’” Long,

198 Wn.2d at 159 (internal quotation marks omitted) (quoting Austin v. United

States, 509 U.S. 602, 609–10, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993)).

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Therefore, a qualifying “fine” for excessive fines purposes is a payment to a

sovereign as punishment for an offense. Id. It is self-evident that to trigger the

Eighth Amendment’s excessive fines clause, a sanction must be a “fine” and it

must be “excessive.” Id. at 162. This is because the concept of the excessive

fines clause is to limit a sovereign’s power to “extract” payments as a form of

punishment. Id. 162–63. As previously explained, the first step in considering a

challenge under the excessive fines clause is to determine whether the state action

constitutes “punishment” or, said another way, is punitive. Id. at 163. If the action

in question is even partially punitive, it also falls within the purview of the excessive

fines clause. Id. The second step is to then inquire as to whether the fine at issue

is constitutionally excessive. Id. We engage in this sort of constitutional question

de novo. State v. McCuiston, 174 Wn.2d 369, 387, 275 P.3d 1092 (2012).

Statutes are presumed constitutional, and the challenger bears the burden to prove

otherwise. Id.

Here, as the State points out, Clement fails to establish that either the CVA

or DNA fee are punitive in light of our state’s precedent. As such, neither

constitutes a fine for purposes of excessive fines clause analysis. While the State

identified precedent in its briefing declaring that both the DNA fee and the CVA are

not punitive, Clement’s only response was to note that the cited cases were issued

before the decision in Long. When a constitutional challenge of this nature is

raised, appellants should be prepared to acknowledge precedent and provide

argument as to why it is distinguishable or should be overturned. See State v.

Otton, 185 Wn.2d 673, 678, 374 P.3d 1108 (2016) (“The question is not whether

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we would make the same decision if the issue presented were a matter of first

impression. Instead, the question is whether the prior decision is so problematic

that it must be rejected, despite the many benefits of adhering to precedent.”).

In the absence of persuasive argument or authority as to his claim that,

despite the Supreme Court’s holding in Long, the state excessive fines clause is

more protective than the federal clause, or in support of his suggestion that we

should depart from case law expressly holding that the two mandatory fines are

not punitive, we end our inquiry into Clement’s challenge here. See Mathers, 193

Wn. App. at 920; Humphrey. 139 Wn.2d at 62; Brewster, 152 Wn. App. at 861. We

follow our established precedent holding that the CVA and DNA fee are non-

punitive and, as such, do not constitute penalties for purposes of the excessive

fines clause.8

III. Racial Disproportionality

Finally, Clement also avers that “fines and fees continue to

disproportionately affect communities of color.” In his briefing, however, Clement

frames this argument by incorporating it into his excessive fines challenge, in

particular that the racially disproportionate impact should require an inquiry into

8 Clement also argues that the imposition of the DNA collection fee and CVA have a

disproportional impact based on an individual’s ability to pay. We consider this portion of his

argument as urging consideration of the instrumentality and proportionality factors set out in

Tellevik v. Real Prop. Known as 6717 100th St. S.W. Located in Pierce County, 83 Wn. App. 366,

921 P.2d 1088 (1996). While these factors predate Long’s clarification of the test for excessive

fines analysis in Washington, Long incorporates review of instrumentality and proportionality

factors. Under either posture, we would still be required to first evaluate the punitive nature of the

challenged assessment. Long, 198 Wn.2d at 159; see also State ex rel. Wash. State Pub.

Disclosure Comm’n v. Food Democracy Action!, 5 Wn. App. 2d 542, 552–53, 427 P.3d 699 (2018).

As such, Clement’s failure to establish that either the DNA collection fee or CVA are punitive

similarly prevents us from reviewing the proportionality factors.

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individual ability to pay. Because this argument is captured within his broader

excessive fines challenge, the initial determination as to the non-punitive nature of

each assessment similarly prevents us from moving forward with additional

analysis.

Clement provides a number of secondary sources in support of his assertion

that lack of individualized inquiry as to ability to pay disproportionally impacts

communities of color. See Daniel S. Harawa, How Much Is Too Much? A Test to

Protect Against Excessive Fines, 81 Ohio St. L. J. 65 (2020); CRIMINAL JUSTICE

POLICY PROGRAM, RACIAL DISPARITIES IN THE MASS. CRIMINAL SYS., CONFRONTING

CRIMINAL JUSTICE DEBT: A GUIDE FOR POLICY REFORM (2016). However, much of

this data relates to disproportionate police contacts and uses of force experienced

by historically marginalized communities. This is true, too, of disproportionate

representation of people of color in our jails and state prison system, compared to

overall community demographics. See KOREMATSU CTR. FOR LAW AND EQUITY,

RACE AND W ASHINGTON’S CRIMINAL JUSTICE SYSTEM: 2021 REPORT TO THE

WASHINGTON SUPREME COURT (2021). This suggests that the uniform imposition of

mandatory fees at the time of conviction is a downstream symptom of systemic

bias in the criminal legal system, as opposed to instances where the

disproportionality is predicated on variable discretion as to the imposition of the

fees. See State v. Gregory, 192 Wn.2d 1, 22, 427 P.3d 621 (2018).

Clement cites to other publications calling on the judicial and legal

community to work together on racial justice and other recent directives. We are

not unmoved by such calls to action, but are compelled to remind Clement that the

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role of an intermediate appellate court such as this one is limited to applying the

law as it exists to the record before us. “An intermediate appellate court does not

have the option of disregarding a higher state court’s decision that has not been

overruled, no matter how old the precedent may be.” State v. Winborne, 4. Wn.

App. 2d 147, 175, 420 P.3d 707 (2018).

In the absence of any authority which would allow us to consider either

assessment as punitive for purposes of engaging in excessive fines clause

analysis, we affirm.

WE CONCUR:

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