State of Washington v. Gregg Wynn Hansen

• Court: Court of Appeals of Washington
• Decided: July 14, 2015
• Docket: 32269-6
• Status: Unpublished

Opinion

FILED JULY 14,2015 In the Office of the Clerk of Court W A State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

STATE OF WASHINGTON, ) ) No. 32269-6-111 Respondent, ) (consolidated with ) No. 32384-6-111 and v. ) No. 32801-5-111) ) GREGG W. HANSEN, ) UNPUBLISHED OPINION ) Appellant. ) -------------------------------------------------- In the Matter of Personal Restraint of: ) ) ) i f GREGG W. HANSEN, )

Petitioner. ) ) ) I KORSMO, J. - By way of appeal, Gregg Hansen contends that the court erred in

imposing a $100 DNA (deoxyribonucleic acid) collection fee. By way of personal

restraint petition (PRP), he also challenges his offender score. Both contentions are

without merit. We affirm the conviction for failing to register as a sex offender and

dismiss the petition.

FACTS

Mr. Hansen was convicted of failing to register as a sex offender, third offense,

after a bench trial. His judgment and sentence form listed 12 prior adult felony No. 32269-6-111 (consolidated with Nos. 32384-6-111 & 32801-5-111) State v. Hansen; PRP a/Hansen

convictions, including five previous failure to register convictions. Accordingly, the

form recognizes an offender score of "9+." There was no challenge to the offender score

calculation and no discussion of it at sentencing. The court imposed a standard range

sentence.

The court also imposed only the mandatory financial obligations for payment of

the crime victim compensation act assessment and a $100 DNA (deoxyribonucleic acid)

collection fee. The court recognized Mr. Hansen's disability and struck the pre-printed

language from the judgment and sentence indicating that the defendant had the ability to

pay his legal financial obligations.

Mr. Hansen filed a notice of appeal at the time of sentencing. Six weeks later he f

I filed a pro se motion to correct sentence, relying upon erR 7.8. Deeming it without

merit, the trial court transferred the matter to this court for consideration as a PRP. This t court accepted the transfer and consolidated the PRP with the appeal. 1 ANALYSIS

The soleI issue presented by the appeal is a contention that the court erred in I assessing the DNA collection fee because Mr. Hansen already had his DNA sample on I[ f

I I In his personal Statement of Additional Grounds, Mr. Hansen argues various factual considerations as a basis for receiving a different sentence. As these do not identify legal error, we will not consider them further. RAP 1O.10(c). I 2 I J t;

,f No. 32269-6-II1 (consolidated with Nos. 32384-6-II1 & 32801-5-III) State v. Hansen; PRP ofHansen

file with the State. We address that issue before turning to the offender score challenge

presented by the PRP.

Appeal

Mr. Hansen argues that the court erred in failing to exercise its discretion to not

require him to give another DNA sample and, therefore, he should not pay the DNA

assessment. However, even if we accept the dubious proposition that a court can abuse

discretion it was never asked to exercise, there was no error here. Even though the court

could waive the DNA collection, the court had no ability to waive the DNA collection

fee. Separate statutes govern the two situations.

Two related statutes are in play here. The first, RCW 43.43.754(1), requires

collection of a DNA sample from every person convicted of failing to register as a sex

offender, although it recognizes an exception ifthe "crime laboratory already has a DNA

sample ... for a qualifying offense." RCW 43.43.754(2). The second statute is the

adjoining RCW 43.43.7541. It provides, in part:

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. For a sentence imposed under chapter 9.94A RCW, the fee is payable by the offender after payment of all other legal financial obligations included in the sentence has been completed.

By amendment ofRCW 43.43.7541, the legislature has mandated payment of the

DNA collection fee. See State v. Brewster, 152 Wn. App. 856,218 P.3d 249 (2009). The

No. 32269-6-111 (consolidated with Nos. 32384-6-111 & 32801-5-111) State v. Hansen; PRP a/Hansen

purpose of the fee is to help pay for the testing of DNA samples and the maintenance and

operation of DNA databases. [d. at 860. To that end, it is a non-punitive legal financial

obligation. [d. at 861. Accordingly, it applies to each sentencing after its enactment. [d.

RCW 43.43.7541 mandates the assessment of the DNA fee for all relevant

offenses, including the one for which Mr. Hansen was convicted. That presents a

different question than whether the court should waive collection of an additional DNA

sample from Mr. Hansen per RCW 43.43.754(2). Even if the court had been asked to

waive the second collection and had granted the request, Mr. Hansen would still have to

pay the fee he now complains about. There is no causal connection between sample

collection and the fee assessment.

The argument is without merit.

Personal Restraint Petition

The PRP claims that the offender score was wrongly calculated and demands a

hearing to "recalculate offender score and hear pertinent inforemation [sic]." This

request puts the cart before the horse. A PRP must present the pertinent information that

establishes error before any hearing can be held. This petition therefore fails to meet its

basic burdens.

The burdens imposed on a petitioner in a PRP are significant. Because of the

significant societal costs of collateral litigation often brought years after a conviction and

the need for finality, reliefwill only be granted in a PRP if there is constitutional error

No. 32269-6-III (consolidated with Nos. 32384-6-III & 32801-5-III) State v. Hansen; PRP o/Hansen

that caused substantial actual prejudice or if a nonconstitutional error resulted in a

fundamental defect constituting a complete miscarriage ofjustice. In re Pers. Restraint

o/Woods, 154 Wn.2d 400, 409, 114 P.3d 607 (2005). It is the petitioner's burden to

establish this "threshold requirement." Id. To do so, a PRP must present competent

evidence in support of its claims. In re Pers. Restraint o/Rice, 118 Wn.2d 876, 885-86,

828 P.2d 1086, cert. denied, 506 U.S. 958 (1992). If the facts alleged would potentially

entitle the petitioner to relief, a reference hearing may be ordered to resolve the factual

allegations. Id. at 886-87.

Here, there is no actual dispute about the facts because Mr. Hansen never

presented any competing facts for consideration. Instead, the only information about the

offender score comes from the judgment and sentence, which recognizes 12 prior

convictions (totaling 14 points towards the offender score) and an additional point due to

the fact that Mr. Hansen was on community supervision at the time of the current crime.

While the PRP notes that facial invalidity is a basis for attacking a conviction, nothing on

the face of the judgment and sentence suggests it is facially invalid. Moreover, the PRP

itself makes no argument in support of its conclusion.

The PRP completely fails to meet its burden of showing a fundamental defect in

the offender score. Accordingly, the PRP must be dismissed.

The conviction is affirmed. The petition is dismissed.

No. 32269-6-II1 (consolidated with Nos. 32384-6-III & 32801-5-III) State v. Hansen; PRP ofHansen

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.

WE CONCUR:

~~~ Brown, A.C.J.

Lawrence-Berrey, J.