[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: Appeal 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 44702 
Stark 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 carrying 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 offense 
Stark 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 (9th 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 the 
Stark 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 weapons under disability. 

{¶ 14} We find Hand and Apprendi inapplicable to having weapons under disability. 

The juvenile adjudication is the disability. 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 possession 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 drug 
Stark 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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