* State of Washington v. Gary Lyle Stoddard

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NOTICE: SLIP OPINION
(not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the
written opinions that are originally filed by the court.
A slip opinion is not necessarily the court’s final written decision. Slip opinions
can be changed by subsequent court orders. For example, a court may issue an
order making substantive changes to a slip opinion or publishing for precedential
purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits
(for style, grammar, citation, format, punctuation, etc.) are made before the
opinions that have precedential value are published in the official reports of court
decisions: the Washington Reports 2d and the Washington Appellate Reports. An
opinion in the official reports replaces the slip opinion as the official opinion of
the court.
The slip opinion that begins on the next page is for a published opinion, and it
has since been revised for publication in the printed official reports. The official
text of the court’s opinion is found in the advance sheets and the bound volumes
of the official reports. Also, an electronic version (intended to mirror the
language found in the official reports) of the revised opinion can be found, free of
charge, at this website: https://www.lexisnexis.com/clients/wareports.
For more information about precedential (published) opinions, nonprecedential
(unpublished) opinions, slip opinions, and the official reports, see
https://www.courts.wa.gov/opinions and the information that is linked there.
 	 	 	 	 	 	 	 	 	 	 	 	 	

FILED
JANUARY 12,2016
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. 32756-6-III
Respondent, 	)
)
v. 	)
)
GARY LYLE STODDARD, 	)
) 	PUBLISHED OPINION
Appellant. 	)
FEARING, J. - 	Following Gary Stoddard's convictions for first degree murder and
first degree kidnapping, the sentencing court imposed legal financial obligations,
including a mandatory deoxyribonucleic acid (DNA) collection fee. 	Stoddard appeals the
financial obligations. He argues that the trial court failed to address his current or future
ability to pay the obligations. He also contends the mandatory DNA fee is
unconstitutional when a court has not first determined the defendant has the ability to
pay. We affirm Stoddard's sentence.
PROCEDURE
The underlying facts that support Gary Stoddard's conviction hold no relevance to
 	 	 	 	 	 	 	 	 	 	 	 	 		 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 32756-6-1II
State v. Stoddard
this appeal. A jury found Mr. Stoddard guilty of first degree murder and first degree
kidnapping for the shooting death of his nephew's girlfriend. The trial court sentenced
him to 440 months' incarceration and imposed legal financial obligations, including
restitution of$18,159.22 to the crime victim's compensation fund, $500.00 as a crime
victim assessment fee, $200.00 for the criminal case filing fee, and $100.00 for a DNA
collection fee.
Gary Stoddard agreed to the restitution amount. Thus the trial court commented
during the sentencing hearing: "I understand you have agreed to the 18-thousand amount.
If there is anything further, you have to approve it. If you don't approve it, you have the
right to a hearing." Report of Proceedings at 1190. Stoddard's judgment and sentence
reads: "The court has considered the total amount owing, the defendant's present and
future ability to pay legal financial obligations, including the defendant's financial
resources and the likelihood that the defendant's status will change." Clerk's Papers at
237.
ANALYSIS
Gary Stoddard contends that the trial court erred in imposing legal financial
obligations without inquiring into his ability to pay. 	Stoddard did not object to the
imposition of the financial obligations at sentencing. Nevertheless, Stoddard asks this
court to exercise its discretion, pursuant to State v. Blazina, 182 Wn.2d 827, 344 P.3d 680
(2015) and remand for a hearing on his ability to pay the obligations. 	Stoddard's reliance
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No. 32756-6-III
State v. Stoddard
on Blazina is misplaced, however, since Stoddard's trial court only imposed mandatory
legal financial obligations.
The trial court imposed a $500 victim assessment fee, a $200 criminal filing fee,
and a $100 DNA collection fee. 	RCW 7.68.035, RCW 36.18.020(2)(h), and RCW
43.43.7541 respectively mandate the fees regardless of the defendant's ability to pay.
Trial courts must impose such fees regardless of a defendant's indigency. State v. Lundy,
176 Wn. App. 96, 102,308 P.3d 755 (2013). Blazina addressed only discretionary legal
financial obligations.
Gary Stoddard agreed to the restitution amount. Thus, the invited error doctrine
precludes review of the restitution judgment. See State v. Young, 63 Wn. App. 324, 330,
818 P.2d 1375 (1991). In State v. Young, this court held that the doctrine of invited error
precluded the defendant from raising an argument on appeal that the restitution order
requiring him to pay a homicide victim's child support obligation was not authorized by
statute, when defendant agreed to restitution amount.
Gary Stoddard next argues, for the first time on appeal, that the imposition of a
mandatory DNA collection fee without inquiry into ability to pay violates substantive due
process principles. RCW 43.43.754 demands a biological sample, for purposes of DNA
identification analysis, from an adult convicted ofa felony. 	In turn, RCW 43.43.7541
imposes a $100 mandatory fee on the adult convicted of a felony to defray the cost of the
collection of the sample. The latter statute reads, in relevant part:
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No. 32756-6-II1
State v. Stoddard
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. For all other sentences, the
fee is payable by the offender in the same manner as other assessments
imposed ....
RCW 43.43.7541.
Gary Stoddard contends that the mandatory $100 DNA collection fee imposed
under RCW 43.43.7541 violates principles of substantive due process because the trial
court did not investigate his ability to pay the fee. 	Nevertheless, Stoddard did not
challenge the constitutionality of the DNA collection fee before the trial court. 	We,
therefore, decline to address the argument under the circumstances of this appeaL
A party may not generally raise a new argument on appeal that the party did not
present to the trial court. In re Det. of Ambers, 160 Wn.2d 543, 557 n.6, 158 P.3d 1144
(2007). A party must inform the court of the rules of law it wishes the court to apply and
afford the trial court an opportunity to correct any error. Smith v. Shannon, 100 Wn.2d
26,37,666 P.2d 351 (1983).
RAP 2.5(a) formalizes a fundamental principle of appellate review. The first
sentence of the rule reads:
(a) Errors Raised for First Time on Review. The appellate court
may refuse to review any claim of error which was not raised in the trial
court.
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No. 32756-6-III
State v. Stoddard
RAP 2.5. No procedural principle is more familiar than that a constitutional right, or a
right of any other sort, may be forfeited in criminal cases by the failure to make timely
assertion of the right before a tribunal having jurisdiction to determine it. 	United States
v. Olano, 507 U.S. 725, 731,113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993); Yakus v. United
States, 321 U.S. 414, 444,64 S. Ct. 660,88 L. Ed. 834 (1944).
Good sense lies behind the requirement that arguments be first asserted at trial.
The prerequisite affords the trial court an opportunity to rule correctly on a matter before
it can be presented on appeal. State v. Strine, 176 Wn.2d 742, 749, 293 P.3d 1177
(2013). There is great potential for abuse when a party does not raise an issue below
because a party so situated could simply lie back, not allowing the trial court to avoid the
potential prejudice, gamble on the verdict, and then seek a new trial on appeal. State v.
Weber, 159 Wn.2d 252,271-72, 149 P.3d 646 (2006); State v. Emery, 174 Wn.2d 741,
762,278 P.3d 653 (2012). The theory of preservation by timely objection also addresses
several other concerns. The rule serves the goal of judicial economy by enabling trial
courts to correct mistakes and thereby obviate the needless expense of appellate review
and further trials, facilitates appellate review by ensuring that a complete record of the
issues will be available, and prevents adversarial unfairness by ensuring that the
prevailing party is not deprived of victory by claimed errors that he had no opportunity to
address. State v. Strine, 176 Wn.2d at 749-50; State v. Scott, 110 Wn.2d 682, 685-88,
757 P.2d 492 (1988).
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No. 32756-6-111
State v. Stoddard
Countervailing policies support allowing an argument to be raised for the first time
on appeal. For this reason, RAP 2.5(a) contains a number of exceptions. RAP 2.5(a)(3)
allows an appellant to raise for the first time "manifest error affecting a constitutional
right," an exception on which a criminal appellant commonly relies. Constitutional errors
are treated specially under RAP 2.5(a) because they often result in serious injustice to the
accused and may adversely affect public perceptions of the fairness and integrity of
judicial proceedings. State v. Scott, 110 Wn.2d at 686-87. Prohibiting all constitutional
errors from being raised for the first time on appeal would result in unjust imprisonment.
2A KARL B. TEGLAND, WASHINGTON: RULES PRACTICE RAP 2.5, at 218 (7th ed. 2014).
On the other hand, "permitting every possible constitutional error to be raised for the first
time on appeal undermines the trial process, generates unnecessary appeals, creates
undesirable retrials and is wasteful ofthe limited resources of prosecutors, public
defenders and courts," State v. Lynn, 67 Wn. App. 339, 344, 835 P.2d 251 (1992).
Washington courts and even decisions internally have announced differing
formulations for "manifest error." First, a manifest error is one "truly of constitutional
magnitude." State v. Scott, 110 Wn.2d at 688. 	Second, perhaps perverting the term
"manifest," some decisions emphasize prejudice, not obviousness. The defendant must
identify a constitutional error and show how, in the context of the trial, the alleged error
actually affected the defendant's rig~ts. It is this showing of actual prejudice that makes
the error "manifest," allowing appellate review. State v. O'Hara, 167 Wn.2d 91, 99, 217
6
 	 	 	 	 	 	 	 	 	 	 	 	 		 	 	 	 	 	 	 	 	 	 	 	 	 	

I
I 	No. 32756-6-111
!
State v. Stoddard
P.3d 756 (2009); Scott, 110 Wn.2d at 688; Lynn, 67 Wn. App. at 346. A third and
important formulation for purposes of this appeal is the facts necessary to adjudicate the
claimed error must be in the record on appeal. State v. McFarland, 127 Wn.2d 322, 333,
899 P.2d 1251 (1995); State v. Riley, 121 Wn.2d 22, 31, 846 P.2d 1365 (1993).
In State v. Riley, Joseph Riley argued that the admission of incriminating
statements violated his Fourth Amendment to the United States Constitution rights
because the statements were the fruit of an illegal search of his home. The state high
court refused to entertain the argument because the record lacked clarity as to whether
Riley uttered the statements before being told the investigating officer possessed a search
warrant.
We consider whether the record on appeal is sufficient to review Gary Stoddard's
constitutional arguments. 	Stoddard's contentions assume his poverty. Nevertheless, the
record contains no information, other than Stoddard's statutory indigence for purposes of
hiring an attorney, that he lacks funds to pay a $100 fee. 	The cost ofa criminal charge's
defense exponentially exceeds $100. Therefore, one may be able to afford payment of
$100, but not afford defense counsel. Stoddard has presented no evidence of his assets,
income, or debts. Thus, the record lacks the details important in resolving Stoddard's due
process argument.
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No. 32756-6-III
State v. Stoddard
Gary Stoddard underscores that other mandatory fees must be paid first and
interest will accrue on the $100 DNA collection fee. 	This emphasis helps Stoddard little,
since we still lack evidence of his income and assets.
CONCLUSION
We affirm Gary Stoddard's sentence.
WE CONCUR:
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