In re: C.W. , 105 N.E.3d 1288 ( 2018 )

[Cite as In re: C.W., 2018-Ohio-3172.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 106465
IN RE: C.W.
A MINOR CHILD
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. DL 17104838
BEFORE: Celebrezze, J., Boyle, P.J., and Jones, J.
RELEASED AND JOURNALIZED: August 9, 2018
ATTORNEYS FOR APPELLANT
Mark A. Stanton
Cuyahoga County Public Defender
BY: Erika B. Cunliffe
Assistant Public Defender
Courthouse Square, Suite 200
310 Lakeside Avenue
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Zen Canaday
Assistant Prosecuting Attorney
9300 Quincy Avenue, Suite 4100
Cleveland, Ohio 44106
ALSO LISTED:
C.W.
3644 Bosworth Road
Cleveland, Ohio 44111
E.W.
873 East 73rd Street
Cleveland, Ohio 44103
FRANK D. CELEBREZZE, JR., J.:
{¶1} Appellant-delinquent, C.W. (“appellant”), brings this appeal challenging a
magistrate’s denial of his motion to dismiss. After a thorough review of the record and law, this
court affirms.
I. Factual and Procedural History
{¶2} On March 24, 2017, Cleveland Metropolitan Housing Authority police officers were
dispatched to the intersection of East 30th Street and Central Avenue in Cleveland for a noise
disturbance. As officers arrived, they observed a vehicle in a parking lot occupied by four
young males. As officers approached the vehicle, they observed the driver, later identified as
appellant, place an item under the driver’s seat. Officers ordered the occupants out of the
vehicle and as officers spoke with appellant, appellant told officers that he had placed a handgun
under the driver’s seat.
{¶3} Appellant was charged in Cuyahoga J.C. No. DL 17104838 for the following
offenses: Count 1, having weapons while under disability, a third-degree felony in violation of
R.C. 2923.13(A)(2), with a one-year firearm specification; Count 2, carrying a concealed
weapon, a fourth-degree felony in violation of R.C. 2923.12(A)(2); and Count 3, improper
handling a firearm in a motor vehicle, a fourth-degree felony in violation of R.C. 2923.16(B).
The weapons under disability charge alleged that appellant had a previous adjudication for
felonious assault that prohibited him from carrying a firearm.
{¶4} The matter proceeded to a trial before the juvenile court magistrate. Prior to trial
commencing, the state dismissed the one-year firearm specification attached to Count 1. Also,
prior to trial, appellant’s counsel filed a motion to dismiss the having weapons while under
disability adjudication arguing that the basis for the disability was itself a juvenile adjudication,
and not a criminal conviction. The magistrate denied appellant’s motion, and the matter
proceeded to trial. The magistrate found appellant guilty on all three counts and appellant was
adjudicated delinquent.
{¶5} Thereafter, appellant’s trial counsel filed an objection to the magistrate’s decision
denying the motion to dismiss. After a hearing on the issue, the juvenile court overruled
appellant’s objection and adopted the magistrate’s decision. It is from this ruling that appellant
now appeals, assigning the following assignment of error for our review.
I. Given the Ohio Supreme Court’s decision in State v. Hand, the juvenile court
violated [appellant’s] rights under the state and federal constitutions by relying on
a previous adjudication as the predicate disability element for the offense of
having a weapon under disability when it found [appellant] delinquent.
II. Law and Analysis
{¶6} In appellant’s sole assignment of error, he argues that the juvenile court erred when
it adjudicated him delinquent of having weapons while under disability, because it erred in using
a prior juvenile adjudication as the “disability” element of the offense. In so doing, appellant
argues that the juvenile court’s decision denying his motion to dismiss is in direct contradiction
to the Ohio Supreme Court’s ruling in State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73
N.E.3d 448.
{¶7} In Hand, the Supreme Court of Ohio held that the use of a juvenile adjudication as
the equivalent of an adult conviction to enhance a penalty for a later crime is unconstitutional,
because, unlike an adult conviction, a juvenile adjudication does not involve the right to a trial by
jury. Id. at ¶ 38.
In so holding, the court struck down R.C. 2901.08(A), a statute that specifically
provided that a prior “adjudication as a delinquent child or as a juvenile traffic
offender is a conviction for a violation of the law or ordinance for purposes of
determining the offense with which the person should be charged and, if the
person is convicted of or pleads guilty to an offense, the sentence to be imposed *
* *[.]” Id. at paragraph one of the syllabus and ¶ 9. Therefore, the Supreme
Court of Ohio made it clear in Hand that “a juvenile adjudication is not a
conviction of a crime and should not be treated as one.” Id. at ¶ 38.
State v. Ortiz, 8th Dist. Cuyahoga No. 105301, 2017-Ohio-9157, ¶ 10.
{¶8} In his motion to dismiss, appellant asserted that the logic of Hand should extend to
his case and prevent the juvenile court from considering his prior juvenile adjudication to support
his having a weapon while under disability adjudication. In committing the offense of having
weapons while under disability, the statute requires an offender to either have a prior conviction
or a prior juvenile adjudication. Therefore, “[u]nlike the statute that was struck down in Hand,
the statute at issue, R.C. 2923.13(A)(2), does not treat a prior juvenile adjudication as a
conviction.” State v. McComb, 2017-Ohio-4010, 91 N.E.3d 255, ¶ 26 (2d Dist.).
Rather, a prior juvenile adjudication and conviction are treated as alternative
elements necessary to establish the offense of having weapons while under
disability. Hand does not ban the use of a prior juvenile adjudication as an
element of an offense; rather, Hand bans the use of a juvenile adjudication to
enhance a penalty by treating the adjudication as an adult conviction.
McComb at id. The Second District further noted the strict holding in Hand that “‘it is
fundamentally unfair to treat a juvenile adjudication as a previous conviction that enhances either
the degree of or the sentence for a subsequent offense committed as an adult.’” Id., quoting
Hand at ¶ 37.
{¶9} This court has previously rejected the argument raised by appellant in Ortiz1 and
State v. Stewart, 8th Dist. Cuyahoga No. 105154, 2017-Ohio-2993. Albeit in those particular
1
State v. Ortiz, Ohio Supreme Court Case No. 2018-0042, is presently pending before the Ohio Supreme
Court.
cases, the issue before the court was an adult defendant not a juvenile defendant, the essence of
the argument is identical. In Stewart and Ortiz, we declined to interpret Hand to negate the
“disability” element of the offense of having weapons while under disability resulting from a
prior juvenile adjudication, stating, in relevant part:
Hand does not apply to the statute at issue here: it did not hold that a juvenile
delinquency adjudication may not constitute an element of an offense. Hand
addressed the narrow issue of whether a juvenile adjudication could be deemed a
criminal conviction for the purpose of sentencing enhancements.
Stewart at ¶ 6, citing Hand at ¶ 36-37. Thus, we decline to interpret the ruling in Hand to be
applicable to a juvenile charged with having weapons while under disability where the disability
element constitutes a prior juvenile adjudication.
{¶10} Further, as this court noted in Ortiz:
Our resolution of this issue is in accordance with other appellate districts that have
considered the issue. See State v. Jackson, 2d Dist. Montgomery No. 27351,
2017-Ohio-4197 (concluding Hand does not apply to the use of a juvenile
adjudication as an element of having a weapon while under disability); State v.
Boyer, 2d Dist. Clark No. 2016-CA-63, 2017-Ohio-4199, 92 N.E.3d 213 (noting
the concerns the Supreme Court articulated in Hand do not apply because the
indictment for having a weapon while under disability “relates strictly to choices
[the defendant] has made since reaching the age of majority”); State v. McCray,
1st Dist. Hamilton No. C-160272, 2017-Ohio-2996, 91 N.E.3d 288 (declining to
extend Hand to bar the use of a juvenile adjudication to prove the disability
element of having a weapon while under disability); State v. Hudson, 7th Dist.
Mahoning, 2017-Ohio-645, 85 N.E.3d 371 (finding no indication the Supreme
Court would extend the holding in Hand to R.C. 2923.13(A)(2) and noting that
many of the other statutory alternatives for establishing the disability element
encompass facts that were not subjected to a prior jury trial); State v. Brown, 10th
Dist. Franklin No. 16AP-753, 2017-Ohio-7134, ¶ 21 (“We conclude, therefore,
that Hand does not apply to R.C. 2923.13(A)(2).”).
Ortiz, 8th Dist. Cuyahoga No. 105301, 2017-Ohio-9157, at ¶ 12. See also State v. Buttery, 1st
Dist. Hamilton No. C-160609, 2017-Ohio-9113, ¶ 21 (“[w]e hold that Hand does not bar the use
of [the defendant’s] juvenile adjudication as the basis of his indictment and conviction for failing
to register.”).
{¶11} In further examining the appellate districts for cases of similar facts and
circumstances as in the instant matter, we note that this appears to be a case of first impression,
where a juvenile adjudication is used as the “disability” element of a juvenile adjudication for
having weapons while under disability. From our review of the above case law, Ohio appellate
districts have all agreed that an adult defendant may be charged with having weapons while
under disability where the disability element is a juvenile adjudication. Thus, we find the same
analysis indistinguishable to appellant’s arguments before this court.
{¶12} Accordingly, based on the precedent established in this appellate district and
several other appellate districts in the state of Ohio, we conclude that the trial court did not err in
refusing to apply the holding in Hand to appellant’s motion to dismiss the charge of having
weapons while under disability because Hand does not apply to R.C. 2923.13(A)(2). Therefore,
we hold that the use of a juvenile adjudication to support an adjudication of having weapons
while under disability does not violate a defendant’s constitutional right to due process, whether
that defendant is charged within the juvenile system or the adult criminal system. See Ortiz.
See also Stewart, 8th Dist. Cuyahoga No. 105154, 2017-Ohio-2993.
{¶13} Lastly, to the extent that appellant argues that his adjudication for having weapons
while under disability violates his rights under the Second Amendment to the United States
Constitution, pursuant to Dist. of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.E.2d
637 (2008), and McDonald v. Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.E.2d 894 (2010),
we find no merit to this argument.
{¶14} Appellant’s sole assignment of error is overruled.
III. Conclusion
{¶15} The trial court did not err in denying appellant’s motion to dismiss. The Ohio
Supreme Court’s decision in Hand does not ban the use of a prior juvenile adjudication as the
disability element of the offense of having weapons while under disability, pursuant to R.C.
2923.13(A)(2).
{¶16} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court, juvenile division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR