[Cite as State v. Jones , 2017-Ohio-9119.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Earle E. Wise, Jr., J. -vs- : : MALIK D. JONES : Case No. 2017CA00064 : Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: A ppeal from the Court of Common Pleas, Case No. 2016CR1423

JUDGMENT: Affirmed

DATE OF JUDGMENT: December 18, 2017

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO BARRY T. WAKSER Prosecutor Stark County By: KATHLEEN O. TATARSKY Public Defender's Office Assistant Prosecutimg Attorney 201 Cleveland Avenue N. W. 110 Central Plaza South, Suite 510 Suite 104 Canton, OH 44702 Canton, OH 44702Stark County, Case No. 2017CA00064 2

Wise, Earle, J.

{¶ 1} Defendant-Appellant, Malik Jones appeals the November 30, 2016 judgment of the Stark County Court of Common Pleas which denied Jones' motion to dismiss the charge of having weapons under disability.

FACTS AND PROCEDURAL HISTORY {¶ 2} In September 2016, the Stark County Grand Jury indicted Jones on one count of having weapons under disability, one count of carryin g concealed weapons , one count of defacing the identification marks of a firearm, and one count of possession of cocaine. As to the charge of weapons under disability, Jones' disability stemmed from a prior juvenile adjudication for assault, a felony of the fourth degree. {¶ 3} Because Jones' disability stemmed from a juvenile adjudication, Jones filed a motion to dismiss the charge based on the Supreme Court of Ohio's decision in State

v. Hand , 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448. Hand held that treating a juvenile adjudication as the equivalent of an adult conviction in order to either enhance the degree of a charged offense, or the resulting sentence, is a violation of due process.

Id ., paragraph one of the syllabus. {¶ 4} On November 30, 2016, the trial court overruled Jones' motion finding Hand was distinguishable from Jones' case. {¶ 5} On February 1, 2017, Jones pled no contest to the indicted offenses. The trial court found him guilty and convicted him. Following a pre-sentence investigation, the trial court imposed a jointly recommended sentence of 18 months incarceration, reserved, pending Jones' satisfactory completion of three years community control. {¶ 6} Jones now brings this appeal raising one assignment of error:Stark County, Case No. 2017CA00064 3

I {¶ 7} THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION

TO DISMISS THE CHARGE OF HAVING WEAPONS UNDER DISABILITY. {¶ 8} Jones argues the trial court should have dismissed the charge of having weapons under disability based on the authority of Hand . We disagree. {¶ 9} State v. Hand , 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448, involved the use of a prior juvenile adjudication for aggravated robbery to enhance the level of Hand's sentence. The opinion examined R.C. 2901.08(A) and R.C. 2929.13(F)(6). The former allows a juvenile adjudication to be treated as a prior conviction in certain circumstances, and the latter requires the imposition of a mandatory prison term for any first or second degree felony if the offender has previously been convicted of a first or second degree felony. At paragraph one of the syllabus, the Court held:

1. R.C. 2901.08(A) violates the Due Process Clauses of Article I, Section 16 of the Ohio Constitution because it is fundamentally unfair to treat a juvenile adjudication as a previous conviction that enhances either the degree of the sentence for a subsequent offense committed by an adult.

{¶ 10} The reasoning behind this holding included the fact that "juvenile law and criminal law are not synonymous." Hand at ¶ 13. The court noted that while juveniles are afforded a wide range of due process protections during adjudicatory proceedings, they are nonetheless not entitled to a jury trial. That being true, the Court found the use of a juvenile adjudication to enhance the degree of, or the sentence for a subsequent offenseStark County, Case No. 2017CA00064 4

a violation of due process under Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi at 420. The

Hand Court additionally found pursuant to United States v. Tighe , 266 F.3d 1187 (9 th Cir. 2001), that the "prior conviction" exception of Apprendi " 'must be limited to prior convictions that were themselves obtained through proceedings that included the right to a jury trial * * * ' " Hand at ¶ 28, citing Tighe at 1194. {¶ 11} In this matter, however, we are asked to apply the holding of Hand to R.C. 2923.13, the weapons under disability statue . That statute states in relevant part:

(A) Unless relieved from disability under operation of law or legal process, no person shall knowingly acquire, carry, or use a firearm or dangerous ordinance if any of the following apply:

* * *

(2) The person is under indictment for, or has been convicted of any felony of violence or, has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense of violence.

{¶ 12} Thus, unlike the statutes at issue in Hand , R.C. 2923.13 does not enhance the degree of or sentence for an offense. Rather, a prior juvenile adjudication for theStark County, Case No. 2017CA00064 5

commission of an offense, which if committed by an adult would be a felony offense of violence, is an element of the offense of possessing weapons under disability. {¶ 13} Jones argues pursuant to Hand and Apprendi , that juvenile adjudications determined in a civil proceeding, without a jury, cannot serve as the predicate for a later adult conviction for having w eapons under disability. {¶ 14} We find Hand and Apprendi inapplicable to having weapons under disability. The juvenile adjudication is the disab ility. It does not, as was the case in Hand and Apprendi , impact the degree of or sentence for the offense. Thus the due process concerns present in Hand and Apprendi are absent here. {¶ 15} Instead, we find as the First District recently found -- that the focus of our inquiry is the existence of the disability, not its reliability, and therefore the United States Supreme Court's decision in Lewis v. United States , 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed2d 198 (1980), and not Apprendi , controls the issue presented here. State v. Barfield , ___ N.E.2d ___, 2017-Ohio-8243 ¶ 8. {¶ 16} Lewis involved the use of an uncounseled felony conviction as a predicate for a later charge of knowingly receiving or possessing a firearm. The Lewis court held that because the focus of federal gun regulations is to keep firearms out of the hands of those considered potentially dangerous, an invalid felony conviction can serve as the disability prohibiting possessi on of a firearm without offending the United States

Constitution. Lewis at 66-67. {¶ 17} Under Lewis , a disability may attach without a criminal conviction tried to a jury. Indeed, the disabilities enumerated in R. C. 2923.13(A)(1) – (5) include statuses that do not require submission to a jury. Specifically, being under indictment for a felony drugStark County, Case No. 2017CA00064 6

offense, being a drug dependent person, in danger of being drug dependent, or a chronic alcoholic, being under adjudication of mental incompetence, mental defect, or having

been committed to a mental institution. {¶ 18} Our brethren in the First, Second, Seventh, Eighth, and Tenth Districts have rejected the argument Jones advances here. State v. Carnes , First Dist. Hamilton No. C150752, 2016-Ohio-8019, appeal allowed, State v. St. Jules , 2nd Dist. Montgomery App. No. 27405, 2017-Ohio-794, State v. Hudson , 7th Dist. Mahoning App. No. 15MA0134, 2017-Ohio-645, State v. Stewart , 8th Dist. Cuyahoga App. No. 105154, 2017-Ohio-2993,

State v. Brown , 10th Dist. Franklin App. No. 16AP-753, 2017-Ohio-7134. We join these districts in concluding that Hand does not apply to R.C. 2923.13(A)(2). Therefore, the use of a juvenile adjudication did not violate Jones' due process rights.Stark County, Case No. 2017CA00064 7

{¶ 19} The sole assignment of error is denied.

By Wise, Earle, J. Gwin, P.J. and Hoffman, J. concur.

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