[Cite as State v. Barfield , 2017-Ohio-8044.]

Criminal Appeal From: Hamilton County Court of Common Pleas Judgment Appealed From Is: Affirmed Date of Judgment Entry on Appeal: October 4, 2017
Joseph T. Deters , Hamilton County Pros ecuting Attorney, and Alex Scott Havlin, Assistant Prosecuting Attorney, for Plaintiff-Appellee, Raymond T. Faller , Hamilton County Public Defender, Christine Y. Jones , Director Public Defender Appellate Division, and Joshua A. Thompson, Assistant Public Defender, for Defendant-Appellant. 

## IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, Plaintiff-Appellee,

vs. WILLIE BARFIELD, Defendant-Appellant. :

:

:

:

: APPEAL NO. C-160768 TRIAL NO. B-1602867
O P I N I O N.O HIO F IRST D ISTRICT C OURT OF A PPEALS

2 

### M ILLER 

### , Judge. 

### {¶1} Willie Barfield asks this court to reverse our recent decision in State v.
Carnes , 2016-Ohio-8019, 75 N.E.3d 774 (1st Dist.), appeal accepted , 2017-Ohio7567, 2017 WL 4037672, arguing that we misinterpreted State v. Hand , 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448, wh ich he claims requires reversal of the trial court’s judgment denying his post-sente nce motion to withdraw his guilty plea. His argument is not well taken. Lewis v. United States , 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), and its progeny expr essly permit something less than a valid criminal conviction to be an underlying disability in a weapon-p ossession offense. 

### {¶2} Barfield pleaded guilty to having a weapon while under a disability, in
violation of R.C. 2923.1 3(A)(2). He admitted to two disabilities—juvenile adjudications for the commission of offens es that would have constituted robbery and aggravated robbery had Barfield been an adult. The trial court accepted Barfield’s plea, and imposed a 12-month sentence. 

### {¶3} Barfield later moved to withdraw his guilty plea, arguing that Hand , which was decided six days before his plea, barred the use of his juvenile adjudications to establish the disa bility element of his conviction. Barfield
contended that he was unaware of Hand at the time of his plea, and therefore his plea had not been voluntarily made. His motion was overuled. 

### {¶4} In his sole assignment of error, Barfield contends that the trial court incorrectly concluded that Hand did not apply. Under Crim.R. 32.1, a defendant seeking to withdraw a guilty plea post-sentence must demonstrate that his motion should be granted to correct a “manifest injustice.” State v. Smith 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus. We review the trial court’sO HIO F IRST D ISTRICT C OURT OF A PPEALS

3 judgment for an abus e of discretion. Id . at paragraph two of the syllabus. Obviously, a manifest justice would not result if Barfield is incorrect regarding Hand.
Carnes is Consistent with Hand and Apprendi 

### {¶5} In relevant part, this court held in Carnes that Hand did not bar theuse of a prior juvenile adjudication to prove the disability element of a weaponpossession charge under R.C. 2923.13. Carnes , 2016-Ohio-8019, 75 N.E.3d 774, at ¶ 15. We more fully explain our ho lding here. As discussed below, Hand does not
control this decision. Lewis does. 

### {¶6} Hand held that R.C. 2901.08(A) violated the due process clauses of
the Ohio and United States Constitutions because it was “fundamentally unfair” to treat a juvenile adjudication as a previous conviction that enhances either the degree of, or the sentence for, a subseque nt offense committed as an adult. Hand , 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448, at paragraph one of the syllabus. The Court also held that using a juvenile adjudication to increase a sentence beyond a statutory maximum or mandatory minimum violated due process under Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Id. at paragraph two of the syllabus. In its Apprendi analysis, Hand focused on the fact that there is no right to a jury trial in the juvenile justice system, and cited United States v. Tighe , 266 F.3d 1187 (9th Cir.2001) for the conclusi on that the “prior conviction” exception

to Apprendi “ ‘ must be limited to prior conviction s that were them selves obtained through proceedings that included th e right to a jury trial * * * .’ ” Hand at ¶ 28, citing Tighe at 1194. 

### {¶7} Barfield argues that because a pr ior adjudication is not reliable enough to enhance a sentence or the degree of an offense, it is not reliable enough to prove a disability element in R.C. 2923.13. We do not read Hand so expansively.O HIO F IRST D ISTRICT C OURT OF A PPEALS

4 Hand concerned the due process implications of a statute that (1) equated a juvenile adjudication with an adult conviction, and (2) treated the adjudication as a
conviction to enhance a sentence. The statute in this case does not treat an adjudication as an adult conviction. The juvenile adjudication is a disability in its own right. Further, the disability elemen t in the statute is no t a penalty-enhancing element. It is an element of the crime. Consequently, the due process concerns
raised in Hand do not exist in this case. See State v. McComb , 2d Dist. Montgomery No. 26884, 2017-Ohio-4010, ¶ 26 (holding that “ 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.”); State v. Hudson , 7th Dist. Mahoning No. 15 MA 0134, 2017-Ohio-645, ¶ 51. 

### {¶8} The key to our analysis here is that only the existence of a disability— and not its reliability—is at issue in the statute. See Carnes , 2016-Ohio-8019, 75 N.E.3d 774, at ¶ 13, citing Lewis , 445 U.S. at 66, 100 S.Ct. 915, 63 L.Ed.2d 198. Lewis, unlike Apprendi and Hand , speaks to disabilities that can be an element of a weapon-possession crime. It controls the issue presented in this case. 

### {¶9} In Lewis , the United States Supreme Court held that an invalid felony conviction could be a disability to proh ibit the possession of a firearm without running afoul of the United States Constitution. Lewis at 66-67

. The Court reasoned that “the federal gun laws * * * focus not on reliability, but on the mere fact of conviction, or even indictment, in order to keep firearms away from potentially dangerous persons.” Id. at 67. Federal circuit courts have applied Lewis to hold that a constitutionally-infirm felony conviction ca n be used to impose a firearm disability post- Apprendi

. See United States v. Marks , 379 F.3d 1114, 1117 (9th Cir.2004)O HIO F IRST D ISTRICT C OURT OF A PPEALS

5 (collecting the cases). Significantly, in Marks the Ninth Circuit applied Lewis after it
had decided Tighe

. See also State v. Boyer , 2d Dist. Clark No. 2016-CA-63, 2017- Ohio-4199, ¶ 13 (holding that, for purposes of establishing a disability “whether a defendant actually committed an offense as a juvenile is rendered immaterial.”).
Lewis and its progeny expressly permit something less than a felony conviction to form the basis of a disability in a weapon-possession offense. We follow Lewis , and decline to expand Hand

. 

### {¶10} Under the Lewis line of cases, a legal disability can arise from far less than a jury-eligible criminal conviction. For example, under R.C. 2923.13(A)(1)-(5), a person is under a “disabilit y” if he or she is a fugit ive from justice, is under indictment for certain felony offenses, is drug-dependent or in danger of drug dependence, is under adjudication of mental incompetence, has been adjudicated as a “mental defective,” has been committed to a mental institution, has been found by a court to be mentally ill, or is an involu ntary patient. None of these “disabilities” come with the procedural or substantive safeguards that precede a valid adult
criminal conviction. To hold as Barf ield suggests would effectively eradicate prohibitions on the possession of weapons by anyone other than an adult convict
who had been afforded the right to a jury trial. Lewis clearly states the United States Constitution does not require this result.

Ohio’s “Due Course” Clause does not Afford Protection beyond the Federal “Due Process” Clause 

### {¶11} Barfield next claims that we should not have relied on Lewis in
Carnes because “ Lewis was a case about federal law analyzed under the federal constitution,” and Hand “is about an Ohio law analyzed under the Ohio
Constitution.” Barfield asserts that beca use the Ohio Constitution can afford moreO HIO F IRST D ISTRICT C OURT OF A PPEALS

6 protection than the United States Constitution, Hand should be read broadly to include banning the use of a juvenile adjudication as the disability element in R.C.
2923.13. 

### {¶12} Hand was decided under the “due course” and “due process” clauses
of the Ohio and United States Constitutions, respectively. Hand , 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448, at paragrap h one of the syllabus and ¶ 11. Ohio’s “due course of law” provision does not provide greater protections than the “due process” clause in the Fourteenth Amendm ent to the United States Constitution. Id.

at ¶ 11, citing Direct Plumbing Su pply Co. v. Dayton , 138 Ohio St. 540, 544, 38 N.E.2d 70 (1941). Barfield’s argument therefore has no merit. 

### {¶13} Finally, Barfield claims that Lewis is inapplicable because the disability in this case was a juvenile adjudication and Lewis involved an adultconviction disability. Lewis held that the reliability of a disability is irrelevant. This holding is equally applicable to adult convictions as well as juvenile adjudications.
Carnes Remains the Law of the First District 

### {¶14} In sum, Carnes is correct. Hand is limited to banning the use of a juvenile adjudication to enhance the degree of or the sentence for a later offense. Applying Hand to hold as Barfield conten ds would be contrary to Lewis. 

### {¶15} Hand does not apply in this case, and Barfield has failed to
demonstrate that the trial court abused it s discretion in deny ing his post-sentence motion to withdraw his guil ty plea. We therefore overrule his sole assignment of error, and affirm the trial court’s judgment. Judgment affirmed. M YERS , J., concurs. Z AYAS , P.J., dissents.O HIO F IRST D ISTRICT C OURT OF A PPEALS

7 Z AYAS , P.J., dissenting. 

### {¶16} I respectfully dissent from the majori ty opinion with regard to the use of a prior juvenile adjudication as an element of an adult offense. I agree with Judge Cunningham’s dissent in State v. Carnes that: “If juvenile adjudications are not reliable enough to enhance a criminal se ntence, surely they are not sufficiently reliable to alone sustain proof beyond a reasonable doubt of an element of a crime.”
Carnes , 2016-Ohio-8019, 75 N.E.3d 774, at ¶ 19 (Cunningham, P.J., dissenting). Therefore, I would sustain the assignment of error, reverse the trial court’s judgment, and remand with instructions to grant Barfield’s motion to withdraw his guilty plea and dismiss the indictment.

Please note: The court has recorded its own entry on the date of the release of this opinion.