[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