[Cite as State v. Boyer, 2017-Ohio-4199.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellant : Appellate Case No. 2016-CA-63
:
v. : Trial Court Case No. 2016-CR-0160
:
ALEXANDER D. BOYER : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellee :
:
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OPINION
Rendered on the 9th day of June, 2017.
...........
MEGAN M. FARLEY, Atty. Reg. No. 0088515, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, 50 East Columbia Street, Fourth Floor, Springfield, Ohio
45502
Attorney for Plaintiff-Appellant
KATHERINE R. ROSS-KINZIE, Atty. Reg. No. 0089762, Assistant State Public Defender,
250 East Broad Street, Suite 1400, Columbus, Ohio 43215
Attorney for Defendant-Appellee
.............
TUCKER, J.
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{¶ 1} Plaintiff-appellant, the State of Ohio, appeals from the trial court’s dismissal
of the second count of an indictment against Defendant-appellee, Alexander D. Boyer.
The State argues that the trial court erred by dismissing the count—a charge of having
weapons while under disability in violation of R.C. 2923.13(A)(2)—in reliance on the Ohio
Supreme Court’s decision in State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73
N.E.3d 448. We find that the dismissal is not warranted by the Hand decision, and we
therefore reverse.
I. Facts and Procedural History
{¶ 2} On April 4, 2016, a Clark County grand jury issued a three-count indictment
against Boyer, charging him with: Count 1, felonious assault in violation of R.C.
2903.11(A)(2); Count 2, having weapons while under disability in violation of R.C.
2923.13(A)(2); and Count 3, attempted murder in violation of R.C. 2903.02(A). Boyer
was arrested three days later and entered a plea of not guilty on all counts at his
arraignment.
{¶ 3} R.C. 2923.13(A)(2) prohibits a person from “knowingly acquir[ing], hav[ing],
carry[ing], or us[ing] any firearm or dangerous ordnance” if the person “is under indictment
for or has been convicted of any felony offense of violence” or if the person “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.” As a minor, Boyer was adjudicated
a delinquent for conduct that, if committed by an adult, would have constituted rape, a
felony offense of violence. Appellee’s Br. 1-2. Count 2 of the indictment is predicated
on this fact.
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{¶ 4} On August 25, 2016, the Ohio Supreme Court issued its opinion in Hand.
The Court held that because “a juvenile adjudication is not established through a
procedure that provides the right to a jury trial, it cannot be used to increase a sentence
beyond a statutory maximum or mandatory minimum.” Hand, 2016-Ohio-5504,
paragraph two of the syllabus. Prompted by the Court’s holding in Hand, Boyer moved
to dismiss Count 2 of the indictment. The trial court, “using the same reasoning set forth
in the Hand case,” sustained Boyer’s motion in an entry dated October 12, 2016. Entry
Sustaining Def.’s Mot. to Dismiss 1, Oct. 12, 2016. Shortly thereafter, the State initiated
the instant appeal.
II. Analysis
{¶ 5} For its single assignment of error, the State contends that:
THE TRIAL COURT ERRED WHEN IT DISMISSED A CHARGE
FOR HAVING WEAPONS UNDER DISABILITY WHERE THE DISABILITY
AROSE FROM A JUVENILE DELINQUENCY ADJUDICATION.
{¶ 6} In support, the State offers two arguments. First, it argues that because “the
plain language of [R.C. 2923.13(A)(2)] is unambiguous and definite,” the statute “must be
applied as written.” Appellant’s Br. 4. Second, it argues that the Hand decision is
inapplicable in this case because “a defendant does not need to [have been] convicted of
anything to be under a disability” for purposes of R.C. 2923.13(A)(2). Id. at 5.
{¶ 7} The first of the State’s arguments may be rejected because a statute need
not be ambiguous or indefinite to be constitutionally unenforceable. In the decision from
which the State takes its appeal, the trial court found “that if the use of a * * * prior juvenile
adjudication to enhance a subsequent adult [criminal] penalty is a violation of * * * due
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process,” as the Ohio Supreme Court determined in Hand, then the use of a juvenile
adjudication “as an element for a subsequent adult felony offense” is likewise a violation
of due process. Entry Sustaining Def.’s Mot. to Dismiss. 1-2. Thus, the trial court did
not misconstrue R.C. 2923.13(A)(2) as the result of any ambiguity or uncertainty, but
instead found that enforcement of the statute on the basis of a juvenile adjudication is
unconstitutional.
{¶ 8} The second of the State’s arguments requires a review of the Hand opinion.
In that case, the Ohio Supreme Court was asked to determine whether “treat[ing] a
juvenile adjudication as the equivalent of an adult conviction for purposes of enhancing a
penalty for a later crime” is a violation of due process. Hand, 2016-Ohio-5504, ¶ 1. It
began its analysis by noting that juvenile courts “are legislative creatures * * * ‘eschew[ing]
traditional, objective criminal standards and retributive notions of justice’ ” in favor of the
“overriding purposes” of providing “ ‘for the care, protection, and mental and physical
development of children,’ ” safeguarding “ ‘the public interest,’ ” holding “ ‘offender[s]
accountable * * *, restor[ing] the victim[s], and rehabilitat[ing] the offender[s].’ ” Id. at
¶ 14, quoting In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1175, ¶ 65.
In summary, said the Court, “juvenile adjudication differs from criminal sentencing [in that
the former] is civil and rehabilitative, [whereas] the [latter] is criminal and punitive.” Id.
{¶ 9} As part of its analysis, the Court relied heavily on the decision of the United
States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000), which 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,’ ” unless
admitted by the defendant, “ ‘must be submitted to a jury[] and proved beyond a
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reasonable doubt.’ ” Hand at ¶ 21, 31, quoting Apprendi, 530 U.S. at 490. Interpreting
this holding in light of the federal judiciary’s history of “emphatic pronouncements on the
importance of the right to a jury trial,” the Ohio Supreme Court interpreted Apprendi as
“limit[ing] the prior-conviction exception to prior proceedings that satisf[y] the
[constitutional] jury-trial guarantee.” Id. at ¶ 34. It concluded, based upon this principle,
that “[b]ecause a juvenile adjudication is not established through a procedure that
provides the right to a jury trial, [a juvenile adjudication] cannot be used to increase a
sentence beyond a statutory maximum or mandatory minimum.” Id. Quite simply, the
Court added, “a juvenile adjudication is not a conviction of a crime and should not be
treated as one.” Id. at ¶ 38.
{¶ 10} The Hand decision is nevertheless not dispositive because, in the instant
case, the use of Boyer’s juvenile adjudication was not for purposes of sentence
enhancement, but as an element of the offense of having weapons while under disability.
In other words, Boyer’s juvenile adjudication was not being treated as a conviction of a
crime. See State v. McComb, 2d Dist. Montgomery No. 26884, 2017-Ohio-4010, ¶ 24-
26. Under R.C. 2923.13(A), a person is deemed to be under a legal disability if:
a. The person is a fugitive from justice;
b. The person is under indictment for any felony offense of violence;
c. The person has been convicted of a felony offense of violence;
d. The person 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;
e. The person is under indictment for any felony offense involving the illegal
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possession, use, sale, administration, distribution or trafficking in any drug
of abuse;
f. The person has been convicted of a felony offense involving the illegal
possession, use, sale, administration, distribution or trafficking in any drug
of abuse;
g. The person has been adjudicated a delinquent child for the commission of
an offense that, if committed by an adult, would have been a felony offense
involving the illegal possession, use, sale, administration, distribution or
trafficking in any drug of abuse;
h. The person is drug dependent, in danger of drug dependence, or is a
chronic alcoholic; or
i. The person is under adjudication of mental incompetence, has been
adjudicated as a mental defective, has been committed to a mental
institution, has been found by a court to be a mentally ill person subject to
court order, or is an involuntary patient other than one who is a patient only
for purposes of observation.
As this list illustrates, a person may be under a legal disability pursuant to R.C. 2923.13(A)
without having been convicted of a criminal offense. A juvenile adjudication for an
offense of violence is only one of several non-criminal predicates giving rise to a legal
disability under the statute.
{¶ 11} In United States v. Rodriguez, 553 U.S. 377, 386, 128 S.Ct. 1783, 170
L.Ed.2d 719 (2008), the U.S. Supreme Court remarked that “[w]hen a defendant is given
a higher sentence under a recidivism statute—or for that matter, when a sentencing
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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,” emphasizing that “[n]one is for the prior convictions or the
defendant’s ‘status as a recidivist.’ ” To the contrary, said the Court, the enhanced
“sentence ‘is a stiffened penalty for the latest crime, which is considered to be an
aggravated offense because [it is] a repetitive one.’ ” Id., quoting Gryger v. Burke, 344
U.S. 728, 732, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948). The Ohio Supreme Court applied
this reasoning to the use of juvenile adjudications for sentence enhancement in State v.
Adkins, 129 Ohio St.3d 287, 2011-Ohio-3141, 951 N.E.2d 766, a case it decided five
years before the release of its opinion in Hand. According to the Adkins decision, a
defendant facing criminal sentence enhancement as the result of a juvenile adjudication
“is not being punished for [the] adjudication,” but rather, “is being punished for [the] current
offense.” Adkins, 2011-Ohio-3141, ¶ 15.
{¶ 12} These decisions highlight the Ohio Supreme Court’s concern in Hand. If
the premise of imposing an adult criminal sentence enhancement on the basis of a
juvenile adjudication is that “the subsequent [adult] offense is * * * more serious because
it portends greater future danger,” having been committed on the heels of a juvenile
offense, then the premise is realized only if the defendant actually committed the offense
that was the subject of the adjudication. Rodriguez, 553 U.S. at 385, citing Witte v.
United States, 515 U.S. 389, 403, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995), and Spencer
v. Texas, 385 U.S. 554, 570, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). Yet, because juvenile
proceedings do not satisfy the jury-trial guarantee, any subsequent adult sentence
enhancement would constitute a criminal sanction based entirely on questions of fact
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never presented to a jury.
{¶ 13} In a prosecution for having weapons while under disability, on the other
hand, the validity of a predicate juvenile adjudication is not at issue. The question
presented in such circumstances is simply whether the defendant chose to use or
possess a weapon in disregard of a legal disability. Consequently, the question of
whether the defendant actually committed an offense as a juvenile is rendered immaterial.
See State v. Hudson, 2017-Ohio-645, ___ N.E.3d ___, ¶ 46, 50-52 (7th Dist.); see also
State v. Carnes, 2016-Ohio-8019, ___ N.E.3d ___, ¶ 7-8, 12-15 (1st Dist.) (reaching
effectively the same conclusion where the appellant argued that the use of an
uncounseled juvenile adjudication as an element of having weapons while under disability
is an unconstitutional violation of the right to counsel).
{¶ 14} Moreover, for purposes of due process, the use of Boyer’s juvenile
adjudication as an element of an offense under R.C. 2923.13(A) is not fundamentally
unfair, not least because R.C. 2923.14(A)(1) permits “any person who is prohibited from
acquiring, having, carrying, or using firearms [to] apply to the court of common pleas in
the county in which the person resides for relief from such prohibition.” Upon reaching
the age of majority, Boyer had the opportunity under R.C. 2923.14(A)(1) to request the
removal of the legal disability created by his juvenile adjudication.
{¶ 15} Ultimately, what the Court sought to avoid in Hand is the “fundamental[]
unfair[ness] [of] allow[ing] juvenile adjudications,” which result from “less formal
proceedings” than in criminal prosecutions, “to be characterized as criminal convictions
that may later enhance adult punishment.” 2016-Ohio-5504, ¶ 35. The use of Boyer’s
juvenile adjudication in this case, however, would not implicate the concerns that the
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Court articulated in its Hand decision. Instead, Boyer’s indictment for having weapons
while under disability relates strictly to choices he has made since reaching the age of
majority. At trial, the State would not be required to prove that Boyer actually committed
an offense of violence as a juvenile, but merely that he had, in fact, been adjudicated for
the commission of such an offense. The use of Boyer’s juvenile adjudication as an
element of having weapons while under disability, therefore, would comport with the ruling
of the United States Supreme Court in Apprendi.
III. Conclusion
{¶ 16} We find that the trial court erred by dismissing the second count of the
indictment against Boyer in reliance on the Ohio Supreme Court’s decision in Hand.
Therefore, we sustain the assignment of error and reverse and remand for further
proceedings consistent with this opinion.
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FROELICH, J., concurs.
DONOVAN, J., dissenting:
{¶ 17} Boyer’s prior adjudication of delinquency, which can now be utilized as an
element of the offense to establish weapons while under disability, suffers from the same
constitutional infirmity as an enhancement. At the heart of the analysis in Hand is the
lack of a right to a jury determination of the predicate conduct. In this case, status
(disability) creates the offense, in Hand status enhances punishment.
{¶ 18} I agree with Judge Cunningham’s dissent in Carnes, it is illogical to
conclude enhancement of punishment is unconstitutional, but prosecution where
otherwise there would be no indictment is not. In all other scenarios, the status of
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disability is conduct which occurs as an adult. The juvenile vs. adult conduct distinction
is critical to the constitutional analysis, particularly under the Ohio Constitution as noted
in Hand.
{¶ 19} I would affirm.
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Copies mailed to:
Megan M. Farley
Katherine R. Ross-Kinzie
Hon. Richard J. O’Neill