[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, 2018ATTORNEYS 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 44103FRANK D. CELEBREZZE, JR., J.: {¶1} Appellant-delinquent, C.W. (“appellant”), brings th is appeal challenging a magistrate’s denial of his motion to dismiss. Af ter a thorough review of the record and law, this

court affirms. I. Factual and Procedural History {¶2} On March 24, 2017, Cleveland Metropolitan H ousing Authority police officers were dispatched to the intersection of East 30th Str eet and Central Avenue in Cleveland for a noise

disturbance. As officers arrive d, they observed a vehicle in a parking lot occupied by four young males. As officers approached the vehicl e, 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 offi cers 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 disa bility, a third-degree felony in violation of R.C. 2923.13(A)(2), with a one-year firearm sp ecification; Count 2, carrying a concealed weapon, a fourth-degree felony in violati on 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 prohibite d 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 c ounsel 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 magi strate found appellant guilty on all three count s 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 a dopted the magistrate’s decision. It is from this ruling that appellant now appeals, assigning the following a ssignment of error for our review. I. Given the Ohio Supr eme 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, becau se 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 dis miss 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 convi ction to enhance a penalty for a later crime is unconstitutional, because, unlike an adult conviction, a juvenile adj udication 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 de linquent 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 th e 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 shoul d 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 adj udication. 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 juven ile adjudication as a

conviction.” State v. McComb , 2017-Ohio-4010, 91 N.E.3d 255, ¶ 26 (2d Dist.). Rather, a prior juvenile adjudication a nd 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 prio r juvenile adjudication as an element of an offense; rather, Hand bans the use of a juvenile adjudication to enhance a penalty by treating the ad judication 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 juve nile 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 th e argument raised by appellant in Ortiz 1 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 de fendant not a juvenile de fendant, 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, st ating, in re levant part:

Hand does not apply to the statute at issue here: it did not hold that a juvenile delinquency adjudication ma y not constitute an element of an offense. Hand addressed the narrow issue of whether a j uvenile 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 disab ility 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 havi ng 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 wea pon while under disability); State v. Hudson , 7th Dist. Mahoning, 2017-Ohio-645, 85 N.E.3d 371 (fi nding 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 adj udication as the basis of his indi ctment and convic tion 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 th at 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 disab ility. From our review of the above case law, Ohio appellate districts have all agreed that an adult defendant may be char ged 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 appella te districts in the state of Ohio, we conclude that th e trial court did not err in refusing to apply the holding in Hand to appellant’s motion to di smiss 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 adjudicati on to support an adjudication of having weapons while under disability does not viol ate a defendant’s constitutional ri ght 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 unde r 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 a ppellant’s motion to dismiss. The OhioSupreme Court’s decision in Hand does not ban the use of a prio r juvenile adjudication as the disability element of the offense of having weapons while under disab ility, pursuant to R.C. 2923.13(A)(2). {¶16} Judgment affirmed. It is ordered that appellee recove r from appellant costs herein taxed.

The court finds there were reas onable 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 Appella te Procedure.

FRANK D. CELEBREZZE, JR., JUDGE MARY J. BOYLE, P.J., and LARRY A. JONES, SR., J., CONCUR