[Cite as State v. Ortiz, 2017-Ohio-9157.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105301
STATE OF OHIO
PLAINTIFF-APPELLANT
vs.
ANTONIO ORTIZ
DEFENDANT-APPELLEE
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-608367-A
BEFORE: E.T. Gallagher, P.J., Boyle, J., and Blackmon, J.
RELEASED AND JOURNALIZED: December 21, 2017
ATTORNEYS FOR APPELLANT
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Daniel T. Van
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Mark Stanton
Cuyahoga County Public Defender
BY: Erika B. Cunliffe
Jeff Gardner
Assistant Public Defenders
Courthouse Square, Suite 200
310 Lakeside Avenue
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, P.J.:
{¶1} Appellant, the state of Ohio (“the state”), appeals from the trial court’s
judgment granting defendant-appellee, Antonio Ortiz’s, motion to dismiss the offense of
having weapons while under disability, as charged by information. The state raises the
following assignment of error for review:
1. Under the holding of State v. Hand, Slip Opinion No. 2016-Ohio-5504,
using a prior juvenile adjudication for a conviction of having weapons
while under disability is not a constitutional violation; therefore, the trial
court erred in dismissing the charge.
{¶2} After careful review of the record and relevant case law, we reverse the trial
court’s judgment and remand for proceedings consistent with this opinion.
I. Procedural and Factual History
{¶3} In August 2016, Ortiz was charged by way of information with one count of
having weapons while under disability in violation of R.C. 2923.13(A)(2), and one count
of carrying a concealed weapon in violation of R.C. 2923.12(A)(2). The offense of
having weapons while under disability was predicated on Ortiz’s prior juvenile
adjudication for aggravated robbery.
{¶4} In November 2016, Ortiz filed a motion to dismiss his having weapons while
under disability charge “based upon the Ohio Supreme Court’s decision in State v. Hand,
[149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448].” Ortiz argued that according to
the reasoning of the Ohio Supreme Court’s decision in Hand, his prior juvenile
adjudication cannot support a having weapons while under disability charge.
{¶5} The state opposed the motion, arguing that the language of Hand is limited to
instances in which a juvenile adjudication enhanced a criminal offense committed by an
adult and does not create a prohibition against using all juvenile adjudications.
{¶6} Following a hearing, the trial court granted the motion, stating in relevant
part:
The state’s arguments lack merit because the Hand decision does not
preclude the application of a juvenile adjudication “for the purposes of
determining the offense with which the person should be charged” as stated
in R.C. 2901.08(A). Nor does it do so concerning any other statute, such as
Having Weapons While Under Disability. The Supreme Court of Ohio in
Hand focused only on enhanced sentencing part of this statute because
those were the facts presented to the Supreme Court of Ohio.
Nevertheless, R. C. 2901.08 (A) clearly provides that an adjudication as a
delinquent child also applies for the purposes of determining the offense
with which the person should be charged, which is the issue in the case
before this Court. The statute concerning Having Weapons While Under
Disability also requires that a defendant have an adjudication as a
delinquent child any felony offense of violence as a requirement for the
purposes of determining the offense with which the person should be
charged. Such an adjudication has occurred with regard to defendant, and
he was charged solely because of that adjudication. The fact that the
language regarding an adjudication as a delinquent child is used in a
specific criminal statute, such as Having Weapons While Under Disability
in R. C. 2923.13(A)(3), as opposed to a non-specific criminal statute, such
as R. C. 2901.08 (A) is not determinative of defendant Ortiz’s constitutional
due process rights. It is clear that the reasoning of the Supreme Court of
Ohio in Hand applies to both types of statutes and to charges that are filed,
as well as to sentencing enhancements.
The Supreme Court of Ohio held in Hand that it is unconstitutional under
due process to use a juvenile adjudication as a delinquent child to be the
equivalent of an adult conviction in order to enhance a penalty or the crime
as an adult. The same reasoning applied regarding the adjudication of a
delinquent child for the purposes of determining the offense with which
the person should be charged, as stated in 2901.08 (A), and which is a one
of the circumstances for charging a defendant with Having Weapons While
Under Disability. See R. C. 2923.13 (A) (3). For these reasons, defendant
Ortiz’s Motion to Dismiss Count 1, Having Weapons While under
Disability is granted.
{¶7} After his having weapons while under disability charge was dismissed, Ortiz
pleaded guilty to carrying a concealed weapon, as charged in Count 2 of the information,
he was sentenced to a two-year term of community control sanctions, including a 90-day
jail term.
{¶8} The state now appeals.
II. Law and Analysis
{¶9} In its sole assignment of error, the state argues that the trial court erred by
granting Ortiz’s motion to dismiss the count of having a weapon while under disability on
the basis of the Ohio Supreme Court’s decision in Hand.
{¶10} In Hand, the Supreme Court of Ohio held that it is unconstitutional to use a
juvenile adjudication as the equivalent of an adult conviction to enhance a penalty for a
later crime, because, unlike an adult conviction, a juvenile adjudication does not involve
the right to a trial by jury. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E. 3d 448, ¶
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.
{¶11} In his motion to dismiss, Ortiz argued that the logic of Hand should extend
to his case and prevent the court from considering his prior juvenile adjudication to
support his having a weapon while under disability charge. This court has previously
rejected this argument. In State v. Stewart, 8th Dist. Cuyahoga No. 105154,
2017-Ohio-2993, we declined to interpret Hand to negate the weapons 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.
Id. at ¶ 6. See also State v. Parker, 8th Dist. Cuyahoga No. 105472, 2017-Ohio-7484.
{¶12} 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 (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 (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 No. 15 MA 0134,
2017-Ohio-645 (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).”).
{¶13} Until otherwise directed, we find the trial court committed reversible error
by dismissing the having a weapon while under disability offense on the basis of the Ohio
Supreme Court’s decision in Hand. The state’s sole assignment of error is sustained.
{¶14} Judgment reversed and remanded.
It is ordered that appellant recover from appellee 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, PRESIDING JUDGE
MARY J. BOYLE, J., and
PATRICIA ANN BLACKMON, J., CONCUR