State v. Parker

[Cite as State v. Parker, 2012-Ohio-4741.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 97841

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

COREY PARKER

DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-549438

BEFORE: S. Gallagher, J., Celebrezze, P.J., and Kilbane, J.

RELEASED AND JOURNALIZED: October 11, 2012
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender

By: Erika B. Cunliffe
Assistant Public Defender
Courthouse Square Suite 200
310 Lakeside Avenue
Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Ma’rion D. Horhn
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:

{¶1} This appeal is a companion case arising out of the same events as contained

in State v. Carrington, 8th Dist. No. 97769.

{¶2} Defendant-appellant, Corey Parker, appeals from the sentence imposed by

the trial court following the entry of a guilty plea to aggravated robbery, with notice of

prior conviction, and having weapons while under disability. For the following reasons,

we affirm Parker’s sentence.

{¶3} On April 16, 2011, Parker drove two codefendants, Emmanuel Scott and

Antwon Carrington, to a pet store located on Cleveland’s east side. Scott and Carrington

entered the store to commit a robbery while Parker remained in the car. There was an

exchange of gunfire in the store, and Scott received a nonfatal gunshot wound. He

returned to the car, and Parker drove him to the emergency room at Cleveland Clinic.

After the police identified Parker from video footage at the clinic, they arrested Parker,

Scott, and Carrington.

{¶4} Parker was indicted on May 12, 2011, along with Scott and Carrington, and

charged with Count 1, aggravated robbery; Count 2, aggravated burglary; Counts 3

through 5, kidnapping; Counts 6 through 8, felonious assault; Count 9, carrying a
concealed weapon; Count 10, having weapons while under disability; and Count 11,

theft. Counts 1 through 8 included one-year and three-year firearm specifications.

Counts 1 through 8 also included a notice of prior conviction specification under R.C.

2929.13(F)(6), a delinquency adjudication in juvenile court for felonious assault, and a

repeat violent offender specification under R.C. 2941.149(A).

{¶5} Parker pleaded guilty on September 21, 2011, to aggravated robbery, a first-

degree felony, and having weapons while under disability, a third-degree felony. In

exchange for Parker’s agreement to cooperate with the police and testify against Scott

and Carrington, the state dismissed all other charges and specifications excluding the one

reflecting notice of prior conviction. The trial court sentenced Parker on November 30,

2011, to eight years in prison with five years of postrelease control.

{¶6} Parker timely appealed and sets forth two assignments of error. In his first

assignment of error, he asserts that because R.C. 2901.08 equates a prior juvenile

delinquency adjudication with a criminal conviction for purposes of enhancing a

subsequent conviction, the statute violates rights guaranteed under the Fifth, Sixth, and

Fourteenth Amendments to the U.S. Constitution along with parallel rights under the

Ohio Constitution. In his second assignment of error, Parker asserts that his sentence is

disproportionate to those of Scott and Carrington. Upon a review of the record, we find

Parker’s arguments have no merit.
 {¶7} Initially, the state cites State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277

(1986), in its appellate brief, but does not discuss its relevance to Parker’s appeal. Parker

failed to raise in the trial court the issue of the constitutionality of R.C. 2901.08.

Generally, a defendant waives constitutional issues apparent at the time of trial if not then

brought to the attention of the court. State v. Cargile, 123 Ohio St.3d 343, 2009-Ohio-

4939, 916 N.E.2d 775, ¶ 14, citing Awan at syllabus. We, however, choose to exercise

our discretion in this case and review the issue because of the rights and interests

impacted potentially by R.C. 2901.08. See In re M.D., 38 Ohio St.3d 149, 151, 527

N.E.2d 286 (1988). See also Crim.R. 52(B); State v. McCullen, 8th Dist. Nos. 97475 and

97476, 2012-Ohio-2629.

{¶8} The state also argues that Parker’s entry of a guilty plea to the aggravated

robbery and the prior conviction precludes him from raising the constitutionality of R.C.

2901.08 as an issue in this appeal. We reject this argument by the state as well.

{¶9} In Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235

(1973), the United States Supreme Court held that where a defendant pleads guilty with

the advice of counsel, he or she may not later claim a violation of constitutional rights

that occurred prior to the plea. See State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-

3167, 810 N.E.2d 927. However, the United States Supreme Court noted in Menna v.

New York, 423 U.S. 61, fn. 2 at 62-63, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975), that a plea of

guilty establishes the defendant’s guilt, and operates as a waiver of only those
constitutional violations that pertain to the issue of factual guilt. In State v. Wilson, 58

Ohio St.2d 52, 55, 388 N.E.2d 745 (1979), the Ohio Supreme Court held that “those

constitutional violations which go to the ability of the state to prosecute, regardless of

factual guilt, may be raised on appeal from a guilty plea.” See State v. Branch, 9 Ohio

App.3d 160, 458 N.E.2d 1287 (8th Dist.1983).

{¶10} The United States Supreme Court thereby distinguished constitutional

violations that go to factual guilt from constitutional violations that relate to the validity

of the statute relied on by the state to convict a defendant. Id. A defendant such as

Parker may, therefore, raise those constitutional violations that go to the state’s ability to

prosecute, regardless of factual guilt, in an appeal from a guilty plea. Id. at paragraph one

of the syllabus. Parker argues that because R.C. 2901.08 is unconstitutional and thus

invalid, the state may not rely on the statute to enhance the penalty for a subsequent

conviction as an adult regardless of his guilt of an offense as a juvenile.

{¶11} A juvenile court proceeding is a civil action, In re Anderson, 92 Ohio St.3d

63, 2001-Ohio-131, 748 N.E.2d 67, syllabus; and juveniles are “adjudicated delinquent”

rather than “found guilty,” State v. Hanning, 89 Ohio St.3d 86, 89, 2000-Ohio-436, 728

N.E.2d 1059. Although Ohio juvenile proceedings do not result in criminal convictions,

effective January 1, 1996, R.C. 2901.08 includes prior juvenile adjudications as previous

convictions for purposes of enhancement of subsequent charges. The statute provides as

follows:
 (A) If a person is alleged to have committed an offense and if
the person previously has been adjudicated a delinquent child or
juvenile traffic offender for a violation of a law or ordinance, * * *
the 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 upon the person relative to the conviction or
guilty plea.

R.C. 2901.08(A).

{¶12} In State v. Adkins, 129 Ohio St.3d 287, 2011-Ohio-3141, 951 N.E.2d 766,

the Ohio Supreme Court considered the constitutionality of R.C. 2901.08. Although

Adkins’s arguments related to the unconstitutional retroactivity of the statute, and

Parker’s arguments relate to the rights to due process and equal protection, and the right

to a jury trial, we find influential to our decision in this case the reasoning enunciated by

the Adkins court in rendering its decision that R.C. 2901.08 is not unconstitutionally

retroactive.

{¶13} The Adkins court found that Adkins was punished for his current offense,

and not a previous juvenile adjudication. Id. at ¶ 15. As the United States Supreme

Court has held,

When a defendant is given a higher sentence under a recidivism statute —
or for that matter, when a sentencing judge, under a guidelines regime or a
discretionary sentencing system, increases a sentence based on the
defendant’s criminal history — 100% of the punishment is for the offense
of conviction. None is for the prior convictions or the defendant’s “status as
a recidivist.” The sentence “is a stiffened penalty for the latest crime,
which is considered to be an aggravated offense because [it is] a repetitive
 one.” Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 92 L.Ed. 1683
(1948).

Id., quoting United States. v. Rodriquez, 553 U.S. 377, 386, 128 S.Ct. 1783, 170 L.Ed.2d

719 (2008).

{¶14} The Adkins court noted further that Adkins’s juvenile disposition remains

untouched:

“Enhancement statutes, whether in the nature of criminal history
provisions such as those contained in the Sentencing Guidelines, or
recidivist statutes which are commonplace in state criminal laws, do not
change the penalty imposed for the earlier conviction.”

{¶15} Adkins at ¶ 16, quoting Nichols v. United States, 511 U.S. 738, 747, 114

S.Ct. 1921, 128 L.Ed.2d 745 (1994). R.C. 2901.08 does not require any change to

Adkins’s juvenile record because that record is unaffected. In other words, his juvenile

adjudication is equivalent to a “conviction for a violation of the law or ordinance” for

purposes of criminal-enhancement statutes, but it remains a juvenile adjudication. Id. at ¶

19.

{¶16} The same holds true here. The use of the prior juvenile adjudication under

R.C. 2901.08 did not change Parker’s juvenile record. It merely enhanced the sentence

imposed by the trial court for the subsequent conviction of aggravated robbery committed

by Parker as an adult.

{¶17} Parker nonetheless argues that despite the express language of R.C.

2901.08, juvenile adjudications are not “convictions” under Ohio law and do not,
therefore, fall within the “prior convictions” exception under Blakely v. Washington, 542

U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S.

466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Blakely, the United States Supreme

Court examined the rule announced in Apprendi. Apprendi establishes an adult criminal

defendant’s general right, under the Fifth, Sixth, and Fourteenth Amendments, to a jury

finding beyond reasonable doubt of any fact used to increase the sentence for a felony

conviction beyond the maximum term permitted by conviction of the charged offense

alone. Apprendi at 490.

{¶18} Juvenile delinquents, however, do not serve sentences; rather, the court

imposes a disposition intended to rehabilitate the child, not to punish him or her. See

R.C. 2152.01(A). In light of the fact that juvenile offenders are not punished, the state is

relieved of the need to afford them the right to a jury trial because the Sixth Amendment

does not guarantee a jury trial for juvenile offenders. See McKeiver v. Pennsylvania, 403

U.S. 528, 545, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971); State v. D.H., 120 Ohio St.3d 540,

2009-Ohio-9, 901 N.E.2d 209, ¶ 42; In re Agler, 19 Ohio St.2d 70, 77-78, 249 N.E.2d

808 (1969). See also R.C. 2151.35(A)(1).

{¶19} Because there is no constitutional right to a jury trial in juvenile

adjudications, federal defendants have challenged the constitutionality of the Armed

Career Criminal Act (“ACCA”). The ACCA requires imposition of a minimum 15-year

term of imprisonment for unlawful possession of a firearm in violation of 18 U.S.C.
922(g) by an individual with three prior serious drug or violent felony convictions. 18

U.S.C. 924(e). The ACCA defines “conviction” to include a “finding that a person has

committed an act of juvenile delinquency involving a violent felony.” 18 U.S.C.

924(e)(2)(C).

{¶20} In construing the ACCA, the federal circuits are split on whether juvenile

adjudications fall within the Apprendi prior-conviction exception. The majority of

circuits, including the Sixth Circuit, found that juvenile adjudications come within the

exception, and may be used to enhance adult sentences, even though they were not

presented to a jury. See United States v. Matthews, 498 F.3d 25, 34 (1st Cir.2007);

United States v. Jones, 332 F.3d 688, 696 (3d Cir.2003); United States v. Wright, 594

F.3d 259 (4th Cir.2010); United States v. Crowell, 493 F.3d 744, 750 (6th Cir.2007);

Welch v. United States, 604 F.3d 408, 426 (7th Cir.2010); United States v. Smalley, 294

F.3d 1030, 1033 (8th Cir.2002); United States v. Burge, 407 F.3d 1183, 1190-1191 (11th

Cir.2005).

{¶21} In Crowell, Crowell asserted that, even if the court found he had a juvenile

adjudication for a “violent felony,” using that finding as a predicate offense for purposes

of the ACCA violates due process and runs afoul of Apprendi, 530 U.S. 466, 120 S.Ct.

2348. Crowell at 749. Crowell contended that a prior juvenile, nonjury adjudication

does not qualify as a “prior conviction” for purposes of the Apprendi exception, and
therefore such an adjudication cannot later be used for sentencing “without affording the

defendant Apprendi rights.” Id.

{¶22} The Sixth Circuit in Crowell held that the use of procedurally sound

juvenile adjudications as ACCA predicates does not violate due process. Id. at 750.

Congress has the power “‘to treat prior convictions as sentencing factors subject to a

lesser standard of proof because the defendant received all process that was due when

convicted — for adults that includes the right to a jury trial; for juveniles, it does not.’”

Id., quoting Jones, 332 F.3d 688, 695 (finding juvenile adjudications qualify as ACCA

predicates so long as they meet the due process requirements for juvenile proceedings);

Smalley, 294 F.3d 1030, 1032-1033 (same).

{¶23} Rather than relying on the “narrow parsing of words” that would create a

bright-line rule whereby proof beyond a reasonable doubt, fair notice, and a right to a

jury trial are all required procedural safeguards that must be present before qualifying for

the Apprendi exception, a court should instead consider “‘the reality of the actual juvenile

adjudications to determine whether they are sufficiently reliable so as to not offend

constitutional rights if used to qualify for the Apprendi exception.’” Crowell, 493 F.3d at

750, quoting Jones at 696. The Sixth Circuit, therefore, joined the Third, Eighth, and

Eleventh Circuits in finding that the imposition of a sentence enhancement under the

ACCA based on a defendant’s juvenile adjudication without a jury trial does not violate
the defendant’s due process rights or run afoul of Apprendi, 530 U.S. 466, 120 S.Ct.

2348. Crowell, 493 F.3d at 750.

{¶24} Here, there is no indication that Parker was not afforded appropriate due

process in his juvenile adjudication. Further, Parker’s juvenile adjudication required a

finding of proof beyond a reasonable doubt. R.C. 2151.35(A)(1). Juvenile adjudications,

where the defendant has certain due process rights, provide sufficient procedural

safeguards to satisfy the reliability requirement that is at the heart of Apprendi. Crowell

at 750. See In re Ravanna T., 6th Dist. No. L-96-371, 1997 Ohio App. LEXIS 3370

(Aug. 1, 1997); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

[T]he Fifth, Sixth, and Fourteenth Amendments, as construed in Apprendi,
do not preclude the sentence-enhancing use, against an adult felon, of a
prior valid, fair, and reliable adjudication that the defendant, while a minor,
previously engaged in felony misconduct, where the juvenile proceeding
included all the constitutional protections applicable to such matters, even
though these protections do not include the right to jury trial.

People v. Nguyen, 46 Cal.4th 1007, 1019, 95 Cal.Rptr.3d 615, 209 P.3d 946 (2009).

{¶25} We likewise conclude that the imposition of a sentence enhancement under

R.C. 2901.08 based on a juvenile defendant’s nonjury trial adjudication does not violate

the defendant’s due process rights or run afoul of Apprendi. We, therefore, find that the

trial court did not violate Parker’s constitutional rights under the Fifth, Sixth, and

Fourteenth Amendments by imposing an enhancement under R.C. 2901.08 based on his

juvenile adjudication.

{¶26} Parker’s first assignment of error is accordingly overruled.
 {¶27} In his second assignment of error, Parker asserts that his sentence is

disproportionate to that of Scott and Carrington. A defendant must raise this issue before

the trial court and present some evidence, however minimal, in order to preserve the issue

for appeal. State v. Storey, 8th Dist. No. 97741, 2012-Ohio-3155, ¶ 10, citing State v.

Bronczyk, 8th Dist. No. 96326, 2011-Ohio-5924, and State v. Cole, 8th Dist. No. 93271,

2010-Ohio-3408. Parker did not raise in the trial court the issue of his sentence being

disproportionate to other offenders with similar records who committed the same offense,

including Scott and Carrington.

{¶28} Because we do not find plain error under Crim.R. 52(B), Parker’s second

assignment of error is overruled.

{¶29} 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 to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
MARY EILEEN KILBANE, J., CONCUR