State v. Carnes

[Cite as State v. Carnes, 2016-Ohio-8019.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-150752
TRIAL NO. B-1301227
Plaintiff-Appellee, :
vs. : O P I N I O N.
ANTHONY CARNES, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 7, 2016
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Edward Felson, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
STAUTBERG, Judge.
{¶1} The main issue presented in this appeal is whether a prior
uncounseled juvenile adjudication that carried the possibility of confinement and
that was obtained without an effective waiver of counsel can later be used by the
state to prove the “disability” element in R.C. 2923.13(A)(2). The answer is yes.
{¶2} Defendant-appellant Anthony Carnes was indicted for having a
weapon while under a disability (“WUD”), in violation of R.C. 2923.13(A)(2).
Carnes’s “disability” was a 1994 juvenile adjudication for an offense that would have
constituted felonious assault had Carnes been an adult. Prior to trial, Carnes moved
the court to dismiss his indictment. He argued that his adjudication could not be
used by the state to prove the disability element of the WUD charge because Carnes
had not been represented by counsel at his adjudication and because, according to
Carnes, his waiver of counsel had been invalid. Along with his motion to dismiss,
Carnes submitted to the court the certified record of his 1994 juvenile court
proceedings. The trial court overruled Carnes’s motion on the ground that Carnes’s
waiver of counsel had been valid. Carnes was later found guilty. The trial court
sentenced him to 30 months’ incarceration and costs. This appeal followed.
The Propriety of Carnes’s Motion to Dismiss His Indictment
{¶3} At the outset, we must determine whether Carnes properly raised his
argument in the trial court. The state contends that, regardless of the merits of
Carnes’s appeal, Carnes’s motion to dismiss was properly denied because his motion
went beyond the indictment itself, and relied upon the record from his 1994 juvenile
court proceedings. The state cites our opinion in State v. Scott, 174 Ohio App. 3d
446, 2007-Ohio-7065, 882 N.E.2d 500 (1st Dist.), in support of its position.
{¶4} In Scott, codefendants Varian Scott and Corey Troupe moved to
dismiss their indictment on the grounds that the state could not prove that Scott and
Troupe had trafficked in cocaine, and also could not prove the accompanying major
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drug offender specifications. The defendants and the state stipulated to the fact that
the “drugs” at issue did not contain cocaine. The trial court granted Scott and
Troupe’s motion. We reversed. We held that a motion to dismiss an indictment that
challenged the sufficiency of the state’s case was not a proper pretrial motion. Scott
at ¶ 11. Our holding was based on our application of Crim.R. 12(C), which provides
that “[p]rior to trial, any party may raise by motion any defense, objection,
evidentiary issue, or request that is capable of determination without the trial of the
general issue.” Scott and Troupe’s motion challenged the sufficiency of the state’s
evidence—a “general issue” to be determined at trial. Scott at ¶ 8-9. We therefore
held that the motion was improper under Crim.R. 12, and that the court should not
have considered any evidence when ruling on the motion. Scott at ¶ 8-10; see State
v. Moore, 1st Dist. Hamilton No. C-130170, 2013-Ohio-5613; State v. Hoskins, 1st
Dist. Hamilton No. C-090710, 2010-Ohio-2454; State v. Love, 1st Dist. Hamilton No.
C-080184, 2008-Ohio-6833. In Scott, we further held that Scott and Troupe’s
motion was improper as it was akin to a motion for summary judgment, which is not
provided for in the Rules of Criminal Procedure. Scott at ¶ 9.
{¶5} Scott does not apply in this case. Here, Carnes was collaterally
attacking the adjudication that formed the “disability” element of his WUD charge.
Whether Carnes had validly waived his right to counsel in 1994 was not a “general
issue for trial” on his WUD charge. And the Ohio Supreme Court has held that
“Crim.R. 12 permits a court to consider evidence beyond the face of an indictment
when ruling on a pretrial motion to dismiss an indictment if the matter is capable of
determination without trial of the general issue.” State v. Brady, 119 Ohio St. 3d 375,
2008-Ohio-4493, 894 N.E.2d 671, ¶ 3; see Crim.R. 12(F) (allowing the court to
consider affidavits, testimony, and exhibits); State v. Knox, 8th Dist. Cuyahoga Nos.
103662 and 103664, 2016-Ohio-5519, ¶ 13-17 (where a motion to dismiss an
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indictment does not require a trial of the general issue, a trial court may consider
evidence beyond the four corners of the indictment).
{¶6} Because Carnes’s pretrial motion to dismiss his indictment was
capable of determination without trial of the general issue, the trial court properly
considered evidence aside from the indictment itself when ruling on the motion.
The Merits of Carnes’s Motion
{¶7} In one assignment of error, Carnes contends that the trial court erred
in failing to dismiss his indictment. We review this argument de novo. State v.
Thompson, 1st Dist. Hamilton No. C-130053, 2013-Ohio-2647, ¶ 4.
{¶8} Carnes argues that the state should have been precluded from using
his uncounseled 1994 juvenile adjudication to prove the “disability” element of his
WUD charge because, according to Carnes, he had not validly waived his right to
counsel in the 1994 case. We need not reach the issue of whether there was a valid
waiver, however, because Carnes’s motion failed as a matter of law.
{¶9} Carnes relies in large part on State v. Bode, 144 Ohio St. 3d 155, 2015-
Ohio-1519, 41 N.E.3d 1156, in support of his argument that his motion to dismiss
should have been granted. In Bode, the Ohio Supreme Court held that “an
adjudication of delinquency may not be used under R.C. 4511.19(G)(1)(d) to enhance
the penalty for a later offense when the adjudication carried the possibility of
confinement, the adjudication was uncounseled, and there was no effective waiver of
the right to counsel.” Id. at syllabus. Carnes essentially argues that Bode should be
extended to prohibit the use of an uncounseled adjudication obtained without a valid
waiver to prove any element of a crime, not just one that enhances punishment. I do
not read Bode so broadly.
{¶10} The underpinnings of the Bode decision can be traced to the
protections afforded to criminal defendants by the Sixth and Fourteenth
Amendments to the United States Constitution. In Argersinger v. Hamlin, 407 U.S.
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25, 37, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972), the United States Supreme Court held
that the Sixth Amendment right to counsel, as applicable to the states through the
Fourteenth Amendment, included a guarantee that, “absent a knowing and
intelligent waiver [of the right to counsel], no person may be imprisoned for any
offense * * * unless he was represented by counsel at his trial.” The Argersinger
Court reasoned that unless a defendant had “the guiding hand of counsel,” his trial
may not have had sufficient guarantees of fairness to support the severe sanction of
imprisonment. Id. at 36-40. A few years later, in Scott v. Illinois, 440 U.S. 367, 373-
374, 99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979), the Court held that the Sixth and
Fourteenth Amendments require that no indigent criminal defendant be sentenced
to a term of imprisonment unless the state afforded him the right to counsel. Citing
Argersinger and Scott, in Baldasar v. Illinois,
446 U.S. 222, 226, 100 S. Ct. 1585, 64 L. Ed. 2d 169 (1980), Justice Marshall, writing
for a plurality of the Court, determined that “a conviction which is invalid for
purposes of imposing a sentence of imprisonment for the offense itself remains
invalid for purposes of increasing a term of imprisonment for a subsequent
conviction.” Id. at 228. The Supreme Court later overruled Baldasar, but held that
an uncounseled prior conviction could be used to enhance a penalty only if the
conviction was valid under Scott. See Nichols v. United States, 511 U.S. 738, 749, 114
S. Ct. 1921, 128 L. Ed. 2d 745 (1994). In Nichols, Justice Souter in his separate
concurrence opined that an uncounseled conviction without a valid waiver of counsel
was not reliable enough to support the severe sanction of imprisonment. Id. at 750
(Souter, J., concurring in judgment).
{¶11} Based on this line of cases, the Ohio Supreme Court has held similarly.
See State v. Brandon, 45 Ohio St. 3d 85, 87, 543 N.E.2d 501 (1989) (holding that a
trial court could not use a prior uncounseled conviction, obtained without a valid
waiver, to enhance the penalty of a later criminal offense.) In State v. Brooke, 113
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Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024, ¶ 9, the Ohio Supreme Court
explicitly recognized that “there is a limited right to collaterally attack a conviction
when the state proposes to use the past conviction to enhance the penalty of a later
criminal offense,” and it reaffirmed that an uncounseled conviction without a valid
waiver could not later be used to enhance the penalty for another crime. In Bode, the
Ohio Supreme Court held that Brooke extended to juvenile adjudications. Bode, 144
Ohio St. 3d 155, 2015-Ohio-1519, 41 N.E.3d 1156, at ¶ 1.
{¶12} The holdings in Brandon, Brooks, and Bode are narrow and
consistent—namely that an uncounseled conviction or adjudication obtained without
a valid waiver of the right to counsel cannot be used to enhance a penalty for a later
crime. Ultimately, these cases turn on the fairness of imposing the severe sanction of
imprisonment where the trial leading to the underlying conviction and the resulting
reliability of that conviction are constitutionally infirm due to a violation of the right
to counsel. An uncounseled conviction obtained without a valid waiver is not infirm
for all uses, however.
{¶13} In Lewis v. United States, 445 U.S. 55, 67-68, 100 S. Ct. 915, 63
L. Ed. 2d 198 (1980), the United States Supreme Court held that it was
constitutionally permissible to use a prior uncounseled felony conviction obtained
without a valid waiver to impose a firearm disability under a federal statute that
made it illegal for a felon to possess a firearm. The Court acknowledged that, under
the Sixth Amendment, an uncounseled conviction could not be used for certain
purposes such as sentencing or penalty enhancement, but reasoned that those cases
turned on the unreliability of the past uncounseled convictions. Id. The reliability of
the underlying felony in Lewis was immaterial because, the Court determined, it was
the mere fact of the conviction that imposed the firearm disability. Id. The Court
reasoned that “Congress could rationally conclude that any felony conviction, even
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OHIO FIRST DISTRICT COURT OF APPEALS
an allegedly invalid one, is a sufficient basis on which to prohibit the possession of a
firearm.” Id. at 66.
{¶14} Likewise, in this case, the mere fact of Carnes’s 1994 adjudication
imposed a disability that made it illegal under R.C. 2923.13(A)(2) for Carnes to
possess a firearm in Ohio. The reliability of Carnes’s adjudication is immaterial for
purposes of that statute. Therefore, the case law that Carnes cites in support of his
position on appeal does not apply. Put another way, because Carnes’s 1994
adjudication was not a penalty-enhancing element of his DUS charge, Bode does not
prohibit its use as an element of that charge.
{¶15} The dissent relies on State v. Hand, __ Ohio St.3d __, 2016-Ohio-
5504, __ N.E.3d __, for its position that Carnes’s adjudication should be off-limits
for purposes of establishing the disability element of the WUD charge. Hand does
not apply in this case. Its holding is limited to banning the use of a juvenile
adjudication to enhance punishment. It is therefore not relevant to the issue raised
in this appeal.
{¶16} Carnes’s sole assignment of error is overruled. The trial court’s
judgment is affirmed.
Judgment affirmed.
DEWINE, J., concurs in judgment only.
CUNNINGHAM, P.J., dissents.
CUNNINGHAM, P.J., dissenting.
{¶17} I respectfully dissent. While I disagree with the lead opinion’s
assertion that the Ohio Supreme Court’s pronouncements on the use of juvenile
adjudications in subsequent criminal prosecutions have been “narrow,” I agree that
they have been “consistent.” The court has consistently limited their use in adult
prosecutions.
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{¶18} Only four months after releasing Bode, in Hand, the court reiterated
that “a juvenile adjudication is not a conviction of a crime and should not be treated
as one.” See id. at ¶ 38 and ¶ 14 et seq. It held that a juvenile adjudication, without
regard to whether it was counseled or uncounseled, may not be used to enhance the
degree of or the sentence for a subsequent adult criminal offense. See id. at
paragraph one of the syllabus. The basis of the court’s decision was its belief that it is
“fundamentally unfair to allow juvenile adjudications that result from * * * less
formal proceedings to be characterized as criminal convictions that may later
enhance adult punishment.” Id. at ¶ 35.
{¶19} This fundamental unfairness, sufficient to deny a defendant due
process of law, is even more apparent when a juvenile adjudication is the essential
predicate for a criminal proceeding, where its use results not just in a longer
sentence but in a loss of liberty itself. If juvenile adjudications are not reliable
enough to enhance a criminal sentence, surely they are not sufficiently reliable to
alone sustain proof beyond a reasonable doubt of an element of a crime. I would
sustain the assignment of error on that basis.
Please note:
This court has recorded its own entry this date.
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