I would affirm the sentence of the municipal court. *Page 144
Although the rhetoric is different, the constitutional considerations are essentially the same (with the exception of the right to trial by jury) in the adult traffic court and the juvenile traffic court. Instead of being found to be operating under the influence of alcohol in adult court, the appellant was found to be a juvenile traffic offender by operating under the influence, in violation of the same traffic statute, R.C.4511.19.
In In re Russell (1984), 12 Ohio St.3d 304, 12 OBR 377,466 N.E.2d 553, the Ohio Supreme Court affirmed a commitment to the Department of Youth Services (a disposition reserved for felony-delinquency adjudications), where the juvenile was found delinquent by reason of a second theft offense. The court stated:
"* * * [W]e conclude that a prior adjudication of delinquency predicated on a theft offense constitutes a previous conviction of a theft offense under R.C. 2913.02 for the purpose of determining disposition." Id. at 305, 12 OBR at 378,466 N.E.2d at 554.
Similarly, the Tenth District Court of Appeals has held that evidence of a prior adjudication of delinquency by petit theft, not otherwise admissible under R.C. 2151.358(H), is admissible to enhance the degree of a theft offense to a felony, grand theft, for purposes of disposition of a juvenile offender. In re Hayes (1986), 29 Ohio App.3d 162, 29 OBR 191, 504 N.E.2d 491.
This case presses the issue to the next level. If the prior delinquency offense is admissible to enhance the offense, on a second charge, in juvenile court, is it admissible when the juvenile has become an adult and is charged in adult court?
I see no compelling reason to answer other than in the affirmative. If "convicted" is allowed to mean "adjudicated" for purposes of enhancement in a subsequent juvenile proceedings, it ought to mean the same thing in the adult court.
Finally, the language of R.C. 2151.358(H) contemplates that the juvenile court judgment and disposition "may be considered by any court only as to the matter of sentence * * *." That is what happened here — the court considered the juvenile traffic offense in the matter of sentencing per R.C. 4511.99(A)(2).
A further question we need not resolve is whether the adult traffic court is required to impose the enhanced sentence as a result of the mandatory requirement of R.C. 4511.99(A). Here the trial court exercised discretion and elected to treat the appellant as a second offender. In that election he did not err.