State v. Ortiz , 2017 Ohio 9157 ( 2017 )


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  • [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