[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Carnes, Slip Opinion No. 2018-Ohio-3256.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2018-OHIO-3256
             THE STATE OF OHIO, APPELLEE, v. CARNES, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as State v. Carnes, Slip Opinion No. 2018-Ohio-3256.]
Criminal law—R.C. 2923.13—Juvenile adjudication of delinquency as an element
        of the offense of having a weapon under a disability—Due process—A prior
        juvenile adjudication may be an element of a weapons-under-disability
        offense without violating due process under the Ohio or United States
        Constitutions.
   (No. 2017-0087—Submitted February 27, 2018—Decided August 15, 2018.)
     APPEAL from the Court of Appeals for Hamilton County, No. C–150752,
                                      2016-Ohio-8019.
                                   __________________
        DEGENARO, J.
        {¶ 1} In this discretionary appeal, we consider whether using a prior
juvenile adjudication of delinquency for the commission of an offense that would
have been felonious assault if it had been committed by an adult as an element of
                                  SUPREME COURT OF OHIO




the offense of having a weapon under disability as set forth in R.C. 2923.13(A)(2)
violates due process. We conclude that it does not, and we affirm the judgment of
the First District Court of Appeals.
                         Relevant Facts and Procedural History
           {¶ 2} Appellant, Anthony Carnes, was indicted by a grand jury in 2013 on
one count of having a weapon while under a disability in violation of R.C.
2923.13(A)(2).1 The alleged disability stemmed from Carnes’s 1994 adjudication
of delinquency as a juvenile for committing a felonious assault. He moved to
dismiss the indictment, asserting that his uncounseled juvenile adjudication could
not be used as a predicate for criminal conduct under R.C. 2923.13(A)(2),
ultimately relying on State v. Bode, 144 Ohio St.3d 155, 2015-Ohio-1519, 41
N.E.3d 1156.         The trial court denied the motion to dismiss, and the matter
proceeded to a jury trial, following which Carnes was convicted and sentenced.
           {¶ 3} In a split decision, the First District upheld the trial court’s denial of
Carnes’s motion to dismiss. 2016-Ohio-8019, 75 N.E.3d 774.
     Juvenile Adjudication as an Element of the Offense of Having a Weapon
                                 While Under a Disability
           {¶ 4} Carnes frames the proposition before us broadly; he argues that a
juvenile adjudication cannot be used to satisfy an element of any adult offense
without violating due process. However, Carnes and appellee, the state of Ohio,
limit the arguments in their briefs to whether a juvenile adjudication can be used as
an element of the weapons-under-disability statute; thus, we limit our consideration
to that statute exclusively and refrain from issuing a broader holding.
           {¶ 5} Carnes urges us to hold that a juvenile adjudication cannot satisfy an
element of an adult offense without violating due process, thereby extending our
holdings in Bode and in State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73


1
    An additional charge of misdemeanor aggravated menacing was subsequently dismissed.


                                                2
                                     January Term, 2018




N.E.3d 448, which was decided during the pendency of Carnes’s appeal to the First
District.2
         {¶ 6} In Bode, we considered whether a prior uncounseled juvenile
adjudication of delinquency for an offense that was equivalent to operating a
vehicle while intoxicated (“OVI”) could be used to enhance the penalty for a
subsequent adult OVI conviction. In an opinion that largely focused on the
juvenile’s due-process right to counsel, we held that an “adjudication of
delinquency may not be used to enhance the penalty for a later offense when the
adjudication carried the possibility of confinement, the adjudication was
uncounseled, and there was no effective waiver of the right to counsel.” Id., 144
Ohio St.3d 155, 2015-Ohio-1519, 41 N.E.3d 1156, ¶ 9.
         {¶ 7} A little over a year later, in Hand, we considered whether the
appellant’s prior juvenile adjudication of delinquency for committing an
aggravated robbery should operate as a first-degree-felony conviction to enhance
his sentence. Hand contended that R.C. 2901.08(A), which would have treated his
juvenile adjudication as an adult conviction for the purposes of sentence
enhancement, violated his due-process rights under the Ohio and United States
Constitutions and was inconsistent with Apprendi v. New Jersey, 530 U.S. 466, 120
S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Alleyne v. United States, 570 U.S. 99, 133
S.Ct. 2151, 186 L.Ed.2d 314 (2013). We agreed, declaring R.C. 2901.08(A)
unconstitutional in this context and holding that because the adjudication process
did not provide the right to a jury trial, “it is fundamentally unfair to treat a juvenile
adjudication as a previous conviction that enhances either the degree of or the
sentence for a subsequent offense committed as an adult.” Hand at ¶ 37.




2
  Although Carnes’s due-process argument in the court of appeals primarily focused on the
uncounseled nature of his juvenile adjudication and whether his waiver of counsel in that proceeding
was valid, he does not pursue that specific argument in this appeal.


                                                 3
                             SUPREME COURT OF OHIO




       {¶ 8} Hand is distinguishable from the situation presented in this case. The
language of R.C. 2901.08(A) expressly provided that a juvenile adjudication “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.” (Emphasis added.) R.C. 2901.08(A).
       {¶ 9} By contrast, R.C. 2923.13, the weapons-under-disability statute, lists
several discrete, alternative disability conditions, including but not limited to
certain juvenile adjudications and adult convictions.


                (A) Unless relieved from disability under operation of law
       or legal process, no person shall knowingly acquire, have, carry, or
       use any firearm or dangerous ordnance, if any of the following
       apply:
                (1) The person is a fugitive from justice.
                (2) The person is under indictment for or has been convicted
       of any felony offense of violence or 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.
                (3) The person is under indictment for or has been convicted
       of any felony offense involving the illegal possession, use, sale,
       administration, distribution, or trafficking in any drug of abuse or
       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.
                (4) The person is drug dependent, in danger of drug
       dependence, or a chronic alcoholic.


                                          4
                                 January Term, 2018




                (5)   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
        used in this division, “mentally ill person subject to court order” and
        “patient” have the same meanings as in section 5122.01 of the
        Revised Code.


R.C. 2923.13(A).
        {¶ 10} Moreover, R.C. 2923.13(A)(2) does not use juvenile adjudications
for sentence-enhancement purposes.         Regardless of the predicate conduct, a
violation of the statute is a third-degree felony. R.C. 2923.13(B). Further, the
juvenile adjudication is an element of the offense; it is the disability. Carnes
advocates that we extend Hand to this situation—because in his view, an element
is more consequential—and at first blush, it is. However, the unique nature of the
weapons-under-disability statute ultimately undermines this argument; that is,
“only the existence of a disability * * * is at issue in the statute.” State v. Barfield,
2017-Ohio-8243, 87 N.E.3d 233, ¶ 8 (1st Dist.).
        {¶ 11} “It is basic hornbook law that the state under its police powers may
impose restrictions on who may possess firearms.” State v. Taniguchi, 74 Ohio
St.3d 154, 157, 656 N.E.2d 1286 (1995). In crafting R.C. 2923.13, the General
Assembly set forth several broad categories of disabling conditions as an element
of the crime; notably, “a legal disability can arise from far less than a jury-eligible
criminal conviction.” Barfield at ¶ 10. For example, a person under indictment for
any felony offense of violence or certain felony drug offenses is not permitted to
carry a firearm. R.C. 2923.13(A)(2) and (3). And the mere fact of such an
indictment—regardless of whether a trial is held or a conviction is subsequently


                                           5
                             SUPREME COURT OF OHIO




obtained—is sufficient to create a disability; a conviction under R.C. 2923.13(A)(2)
or (3) may stand even “when there is an acquittal on, or dismissal of, the indictment
which had formed the basis for the charge of having a weapon while under
disability.” Taniguchi at syllabus. R.C. 2923.13 also prohibits firearm possession
by fugitives, persons legally deemed to be mentally incompetent, and those with
conditions such as drug dependence, a danger of drug dependence, or chronic
alcoholism. R.C. 2923.13(A)(1) and (4) through (5).
       {¶ 12} Further, the legislature created a process whereby a person may seek
relief from a disability. Subject to certain exceptions, “any person who is prohibited
from acquiring, having, carrying, or using firearms may apply to the court of
common pleas in the county in which the person resides for relief from such
prohibition.” R.C. 2923.14(A)(1). The common pleas court may grant relief


               (1) * * *
               (a) [i]f the disability is based upon * * * an adjudication, the
       applicant has been fully discharged from imprisonment, community
       control, post-release control, and parole * * *,
               ***
               (2) [t]he applicant has led a law-abiding life since discharge
       or release, and appears likely to continue to do so,
               (3) [t]he applicant is not otherwise prohibited by law from
       acquiring, having, or using firearms.


R.C. 2923.14(D). Notably, Carnes failed to avail himself of this process.
       {¶ 13} Both parties direct our attention to Lewis v. United States, 445 U.S.
55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980). Although Lewis involved a federal
weapons-disability statute that did not include juvenile adjudications as a basis for
a disability, it is nonetheless instructive. The issue in Lewis was whether a


                                          6
                                 January Term, 2018




defendant’s existing prior conviction, which was flawed because the defendant had
not been represented by counsel and therefore was subject to collateral attack, could
constitute the predicate act for a subsequent conviction under the federal weapons-
disability statute. Id. at 56.
        {¶ 14} The Lewis court concluded that the prior conviction could constitute
the predicate act, distinguishing caselaw that precluded the use of previous
convictions to enhance a penalty or for sentencing purposes because the previous
convictions were entered without the benefit of counsel and their reliability was
questionable. Id. at 66-67, citing Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19
L.Ed.2d 319 (1967), and United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30
L.Ed.2d 592 (1972). The Supreme Court likewise found it notable that federal law
provided a mechanism to obtain relief from the weapons disability. Id. at 64.
        {¶ 15} Following a discussion of the legislative history of the federal
weapons-under-disability statute, the court concluded that “the federal gun laws
* * * focus not on reliability, but on the mere fact of conviction, or even indictment,
in order to keep firearms away from potentially dangerous persons.” Lewis at 67.
In other words, the legislative purpose underlying the statute was “ ‘broadly to keep
firearms away from the persons Congress classified as potentially irresponsible and
dangerous.’ ” Id. at 64-65, quoting Barrett v. United States, 423 U.S. 212, 218, 96
S.Ct. 498, 46 L.Ed.2d 450 (1976).          Accordingly, the court concluded that
“[e]nforcement of that essentially civil disability through a criminal sanction does
not ‘support guilt or enhance punishment,’ see Burgett, 389 U.S., at 115, 88 S.Ct.,
at 262, on the basis of a conviction that is unreliable when one considers Congress’
broad purpose.” Lewis at 67.
        {¶ 16} R.C. 2923.13 was enacted in 1972 as part of a bill that largely
revamped Ohio’s existing substantive criminal code. Am.Sub.H.B. No. 511, 134
Ohio Laws, Part II, 1866, 1966-1967; see generally Legislative Service
Commission, Summary of Am.Sub.H.B. 511, The New Ohio Criminal Code,


                                          7
                             SUPREME COURT OF OHIO




Introduction, at v (1973). Inherent in R.C. 2923.13(A)(2) is a policy decision made
by the legislature that allowing weapons in the hands of individuals with certain
prior juvenile adjudications poses an increased risk to public safety, as does
allowing weapons in the hands of those with other disabling conditions such as
chronic alcoholism or drug dependence.
       {¶ 17} The risk-assessment determination made by the General Assembly
in enacting R.C. 2923.13 does not undermine the rehabilitative purpose of the
juvenile-justice system, nor does it give rise to the due-process concerns we were
called upon to resolve in Hand. Framed differently, the lack of a right to a jury
trial, as well as other protections, does not make prior juvenile adjudications
unreliable for risk-assessment purposes.
       {¶ 18} Although we are not unsympathetic to Carnes’s particular situation,
we emphasize that it is not our role to second-guess the General Assembly’s policy
choices. Stetter v. R.J. Corman Derailment Servs., L.L.C., 125 Ohio St.3d 280,
2010-Ohio-1029, 927 N.E.2d 1092, ¶ 35. The dissent rightfully acknowledges that
the General Assembly could initiate reforms to the weapons-under-disability statute
to reflect emerging policy concerns, but so far it has not done so.
       {¶ 19} Contrary to R.C. 2901.08(A)—the statute struck down in Hand—
R.C. 2923.13(A)(2) does not deem the juvenile adjudication to be an adult
conviction; the juvenile adjudication is itself an element of the offense. Regardless
of the predicate conduct, a violation of R.C. 2923.13(A) is a third-degree felony;
there is no sentence enhancement. For all of these reasons, we decline to extend
Hand’s reach.
       {¶ 20} Finally, we turn to amicus curiae Buckeye Firearms Association’s
contention that because a juvenile adjudication in Ohio is not a criminal conviction,
the state is prohibited from criminalizing the legal possession of a firearm based
upon a prior juvenile adjudication pursuant to the Second and Fourteenth
Amendments to the United States Constitution and Article I, Section 4 of the Ohio


                                           8
                               January Term, 2018




Constitution. Because these arguments were not raised in the trial or appellate
courts, they were not preserved for our consideration, and we decline to address
them now. See State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19
N.E.3d 900, ¶ 15-16.
                                   Conclusion
       {¶ 21} A prior juvenile adjudication may be an element of the weapons-
under-disability offense set forth in R.C. 2923.13(A)(2) without violating due
process under the Ohio or United States Constitutions.          Because Hand is
distinguishable, we decline to extend its holding to this case. Accordingly, the
judgment of the First District Court of Appeals is affirmed.
                                                               Judgment affirmed.
       O’DONNELL, CALLAHAN, FRENCH, KLATT, and SADLER, JJ., concur.
       O’CONNOR, C.J., dissents, with an opinion.
       LYNNE S. CALLAHAN, J., of the Ninth District Court of Appeals, sitting for
KENNEDY, J.
       WILLIAM A. KLATT, J., of the Tenth District Court of Appeals, sitting for
FISCHER, J.
       LISA L. SADLER, J., of the Tenth District Court of Appeals, sitting for
DEWINE, J.
                               _________________
       O’CONNOR, C.J., dissenting.
       {¶ 22} I dissent. The General Assembly established Ohio’s juvenile-justice
system with the understanding that child offenders are fundamentally different from
adult offenders. See In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d
1177, ¶ 66. We have repeatedly recognized the distinct purposes of juvenile and
adult courts. See, e.g., State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73
N.E.3d 448, ¶ 27-31; State v. D.W., 133 Ohio St.3d 434, 2012-Ohio-4544, 978
N.E.2d 894, ¶ 7; In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729,


                                         9
                              SUPREME COURT OF OHIO




¶ 72. And in my dissenting opinion in State v. Aalim, 150 Ohio St.3d 489, 2017-
Ohio-2956, 83 N.E.3d 883 (O’Connor, C.J., dissenting), I detailed many of the
practical and constitutional differences between juvenile and adult courts.
        {¶ 23} The law at issue in this case, R.C. 2923.13, does not consider these
differences or comport with the rehabilitative goals of the juvenile-justice system.
Rather than limiting a juvenile adjudication to its rehabilitative purpose and
function, R.C. 2923.13 allows the long arm of the law to reach back well after the
juvenile court’s jurisdiction ends to seize a youthful adjudication and use it as the
basis for a criminal penalty in adulthood—in this case a 30-month prison sentence.
The effect is that a juvenile adjudication and disposition may punish an offender
through adulthood without any notice to the juvenile that the disability exists or
procedure for the juvenile court to consider if the facts of the case warrant the
disability.
        {¶ 24} If a juvenile crime is serious enough to potentially merit adult
consequences, the state may seek to transfer the juvenile to adult court, R.C.
2152.12, or request the imposition of a serious-youthful-offender disposition, R.C.
2152.13. If the state does not avail itself of one of these options, then it is
fundamentally unfair to use a juvenile adjudication to trigger adult criminal liability
pursuant to R.C. 2923.13. Using a juvenile adjudication as a predicate disability is
akin to using a juvenile adjudication as a sentencing enhancement. In Hand at
¶ 38, we found that using a juvenile adjudication as a sentencing enhancement was
“inconsistent with Ohio’s system for juveniles, which is predicated on the fact that
children are not as culpable for their acts as adults and should be rehabilitated rather
than punished.”
                          RELEVANT BACKGROUND
        {¶ 25} The majority refers to appellant’s, Anthony Carnes’s, 1994
adjudication of delinquency for committing a felonious assault. But information
surrounding the facts is illuminating. While serious, the circumstances are not


                                          10
                                 January Term, 2018




particularly unusual and show a teenage disagreement that got out of hand. The
assault stemmed from a fist fight when Carnes was 16 years old. The fight started
as an argument between Carnes and another boy approximately his age. The two
met to settle the argument, which led to a fight in which Carnes punched the other
boy, causing him to lose four teeth. Carnes was arrested about one week after the
fight. He was released but returned to court one month later for a hearing on the
charges. He was accompanied at that hearing by his mother, who was a nurse.
Although Carnes and his mother signed a waiver at that time, when Carnes was
questioned during the current proceedings, he did not remember being offered an
attorney or understand that he had waived his right to one. The state did not offer
any of the victim’s medical records into evidence to establish the fact or extent of
injury.    Carnes accepted a plea agreement, thereby avoiding an adjudicatory
hearing. He was sent to a residential treatment facility, Hillcrest School, in lieu of
a Department of Youth Services facility.
          {¶ 26} Twenty years later, police responded to a 9-1-1 call reporting shots
fired near Carnes’s home. Although there was no testimony that Carnes was seen
with a weapon, police located one in the back of his home. The police subsequently
linked him to the gun using DNA evidence. He was indicted for violating R.C.
2923.13, having a weapon while under disability, and for violating R.C. 2903.21,
aggravated menacing. The trial court dismissed the aggravated-menacing charge
for want of prosecution.
                                     ANALYSIS
 A. Recent advancements in understanding the development of a juvenile’s
             brain have led to greater scrutiny of juvenile-justice laws
          {¶ 27} The General Assembly established Ohio’s juvenile-justice system to
achieve fundamentally different results than those reached in adult criminal courts:




                                          11
                            SUPREME COURT OF OHIO




       The juvenile courts were premised on profoundly different
       assumptions and goals than a criminal court, United States v.
       Johnson (C.A.D.C.1994), 28 F.3d 151, 157 (Wald, J., dissenting),
       and eschewed traditional, objective criminal standards and
       retributive notions of justice. Instead, a new civil adjudication
       scheme arose, with a focus on the state’s role as parens patriae and
       the vision that the courts would protect the wayward child from
       “evil influences,” “save” him from criminal prosecution, and
       provide him social and rehabilitative services. In re T.R. (1990),
       52 Ohio St.3d 6, 15, 556 N.E.2d 439; Children’s Home of Marion
       Cty. v. Fetter (1914), 90 Ohio St. 110, 127, 106 N.E. 761; Ex parte
       Januszewski (C.C.Ohio 1911), 196 F. 123, 127.


In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, at ¶ 66.
Although the juvenile-justice system has always been premised on the notion that
adult criminal court is inappropriate for most child offenders, only recently has
medical evidence been offered to support that premise.
       {¶ 28} Substantial scientific research during the last two decades has
discovered significant physiological differences between child and adult brains.
Citing this evidence, the United States Supreme Court recognized that in
comparison to adults, “juveniles have a ‘ “lack of maturity and an underdeveloped
sense of responsibility.” ’ ” Graham v. Florida, 560 U.S. 48, 68, 130 S.Ct. 2011,
176 L.Ed.2d 825 (2010), quoting Roper v. Simmons, 543 U.S. 551, 569-570, 125
S.Ct. 1183, 161 L.Ed.2d 1 (2005), quoting Johnson v. Texas, 509 U.S. 350, 367,
113 S.Ct. 2658, 125 L.Ed.2d 290 (1993). Juveniles “ ‘are more vulnerable or
susceptible to negative influences and outside pressures, including peer pressure’;
and their characters are ‘not as well formed.’ ” Id., quoting Roper at 569-570.
Amici curiae Juvenile Law Center and National Juvenile Defender Center


                                        12
                                 January Term, 2018




submitted significant documentation of similar findings. In one article cited by the
centers, Laurence Steinberg, a doctor of psychology with a focus on adolescent
development, noted that “[a]dolescence is not just a time of tremendous change in
the brain’s structure. It is also a time of important changes in how the brain works.”
Steinberg, Should the Science of Adolescent Brain Development Inform Public
Policy?, 50 Ct.Rev. 70 (2014). Steinberg made the following observations about
structural changes that the brain undergoes during adolescence:


       First, over the course of adolescence and into early adulthood, there
       is a strengthening of activity in brain systems involving self-
       regulation. * * *
               Second, there are important changes in the way the brain
       responds to rewards. * * *
               A third change in brain function over the course of
       adolescence involves increases in the simultaneous involvement of
       multiple brain regions in response to arousing stimuli, such as
       pictures of angry or terrified faces.


Id. at 70-71. Steinberg concluded that “the consensus emerging from recent
research on the adolescent brain is that teenagers are not as mature as adults in
either brain structure or function.” Id. at 71.
       {¶ 29} Another article cited by the centers described evidence establishing
that “the connectivity and efficiency of [cellular] connections” in the prefrontal
cortex, the area of the brain responsible for executive functions including short-
term memory, attention, inhibitory control, and decision making, “has been shown
to continue developing throughout adolescence and early adulthood.” Gruber &
Yurgelun-Todd, Neurobiology and the Law: A Role in Juvenile Justice?, 3 Ohio
St.J.Crim.L. 321, 324 (2006).


                                          13
                              SUPREME COURT OF OHIO




        {¶ 30} A juvenile’s brain is still developing until the juvenile is 18 years old
and is no longer subject to juvenile adjudication, and likely well after. Recent
studies suggest that juveniles are less able than adults to regulate their responses to
external stimuli and to judge the consequences of their actions. See, e.g., Steinberg
at 71-72. I am not suggesting that this research absolves juveniles from all
responsibility for their bad acts. But that research does suggest that even though our
juvenile-justice system is based on the theories of protection, treatment, and
rehabilitation, it is not properly designed to grapple with the realities of the not-yet-
developed brains of juveniles.
        {¶ 31} Although the legislative branch has been hesitant to enact reforms to
juvenile-justice systems, courts have been willing to consider constitutional
challenges to juvenile-justice laws in light of scientific studies involving juvenile
brain development. In a series of cases, the United States Supreme Court has relied
on such documentation and research to strike down certain juvenile-justice laws.
For example, that court has held unconstitutional the imposition of the death penalty
on juvenile offenders, Roper, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1, and the
sentencing of juvenile offenders for both nonhomicide and homicide crimes to life
without possibility of parole as cruel and unusual punishment, Miller v. Alabama,
567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407.               The Supreme Court has
acknowledged that “the case for retribution is not as strong with a minor as with an
adult,” Roper at 571, and also has concluded that as compared to adult offenders,
juveniles have “diminished culpability and greater prospects for reform,” Miller at
471.
        {¶ 32} This court has echoed the Supreme Court’s conclusions, determining
that due to their lack of maturity, juvenile offenders who commit even the most
heinous acts have a lesser moral culpability than adults who commit similar acts,
State v. Moore, 149 Ohio St.3d 557, 2016-Ohio-8288, 76 N.E.3d 1127, ¶ 58. See
also In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729, at ¶ 40


                                           14
                                January Term, 2018




(juveniles are not only “less culpable than adults, their bad acts are less likely to
reveal an unredeemable corruptness”).
 B. The mounting evidence of a juvenile’s brain development suggests that
          R.C. 2923.13 as applied to juvenile adjudications is unjust
       {¶ 33} R.C. 2923.13 makes it a felony for an individual who was
“adjudicated a delinquent child for the commission of an offense that, if committed
by an adult, would have been a felony offense of violence” or 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” to “knowingly
acquire, have, carry, or use any firearm or dangerous ordinance.”                R.C.
2923.13(A)(2) to (3).     The majority’s decision upholding and applying R.C.
2923.13 to cases like Carnes’s does not comport with the most recent studies
pertaining to a juvenile’s brain development. Additionally, permitting the juvenile
adjudication to follow the juvenile into adulthood does not advance the protective
or rehabilitative goals of the juvenile-justice system.        Rather than limiting
punishment for youthful indiscretions to the period in which a person was under
the jurisdiction of the juvenile-justice system, R.C. 2923.13 allows a child’s lapses
in judgment to be a permanent stain on his criminal record—in this case, 20 years
into the future—and allows those lapses to be the basis of penalties, including
incarceration, when no crime would exist absent the juvenile adjudication.
       {¶ 34} This disability contrasts starkly with the others mentioned in R.C.
2923.13. A majority of the other disabilities involve conduct, such as being a
fugitive from justice, being under indictment for certain offenses, being drug
dependent or a chronic alcoholic, or being under an adjudication of mental
incompetence. R.C. 2923.13(A). The other disabilities involve one common
link—conduct that has occurred when the defendant is an adult. But in Carnes’s
case, the General Assembly allows a juvenile adjudication to serve as the basis for
an adult criminal penalty. Allowing a juvenile offense that was not serious enough


                                         15
                             SUPREME COURT OF OHIO




to merit transfer to an adult court to follow Carnes for 20 years directly contradicts
the current scientific understanding of the juvenile brain. And it is inconsistent
with Ohio’s juvenile-justice system, which is based on rehabilitation, not
punishment.
C. Jurisprudence finding certain sentencing enhancements unconstitutional
     calls R.C. 2923.13 as applied to juvenile adjudications into question
       {¶ 35} R.C. 2923.13 is unjust because it allows a juvenile adjudication to
burden a child into adulthood; it is unconstitutional because it burdens an adult with
a juvenile adjudication when the person as a juvenile was not afforded the full
panoply of constitutional rights available to an adult in the criminal-justice system.
The deprivation of a juvenile’s rights is an intentional component of the juvenile-
justice system.    We have held that “[b]ecause of the state’s stake in the
rehabilitation of the juvenile offender and the theoretically paternal role that the
state continues to play in juvenile justice, a balanced approach is necessary to
preserve the special nature of the juvenile process while protecting procedural
fairness.” State v. D.H., 120 Ohio St.3d 540, 2009-Ohio-9, 901 N.E.2d 209, ¶ 49.
Among the fundamental due-process rights denied to juveniles is the right to a jury
trial. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448, at ¶ 36.
       {¶ 36} The United States Supreme Court has held that it is unlawful to
enhance a sentence based on facts not found by a jury (or by a judge when the
offender waived the right to a jury trial). Apprendi v. New Jersey, 530 U.S. 466,
120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The Supreme Court held that a judge is
not permitted to make a finding of any fact, other than the fact of a prior conviction,
when such a finding would subject the defendant to a penalty beyond the prescribed
statutory maximum. Id. at 490. The court endorsed the principle that “ ‘it is
unconstitutional for a legislature to remove from the jury the assessment of facts
that increase the prescribed range of penalties to which a criminal defendant is
exposed.’ ” Id. at 490, quoting Jones v. United States, 526 U.S. 227, 252, 119 S.Ct.


                                          16
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1215, 143 L.Ed.2d 311 (1999) (Stevens, J., concurring). It also noted “the novelty
of a legislative scheme that removes the jury from the determination of a fact that,
if found, exposes the criminal defendant to a penalty exceeding the maximum he
would receive if punished according to the facts reflected in the jury verdict alone.”
(Emphasis sic.) Id. at 482-483.
        {¶ 37} In State v. Bode, 144 Ohio St.3d 155, 2015-Ohio-1519, 41 N.E.3d
1156, we considered the use of an uncounseled juvenile adjudication as a
sentencing enhancement.      In Bode, an uncounseled juvenile adjudication for
operating a vehicle while intoxicated (“OVI”) was counted as one of the five
violations necessary to enhance an adult’s charge for OVI to a felony OVI that
required prison as punishment. Id. at ¶ 4. We held that an uncounseled juvenile
adjudication during which the right to counsel was not waived could not be used to
enhance a later violation of the OVI law that could lead to confinement. Id. at
¶ 17-18. We described Bode’s juvenile adjudication as a “20-year ticking time
bomb” and held that it was unconstitutional for an uncounseled juvenile
adjudication to be used to enhance the punishment for a subsequent OVI charge.
Id. at ¶ 25.
        {¶ 38} In Hand, we applied the United States Supreme Court decision in
Apprendi, expanded our ruling in Bode, and held that it was unconstitutional for
any juvenile adjudication, not just an uncounseled one, to be the basis for a
sentencing enhancement. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.2d
448, at ¶ 38. We recognized that juvenile adjudications do not have the same
procedural safeguards as adult convictions, including the rights to a jury trial and
to have guilt proved beyond a reasonable doubt. Id. at ¶ 26. We ruled that “[i]n
order to continue holding that a jury trial is not required for juveniles, we must
maintain the civil nature of juvenile adjudications.        It is contradictory and
fundamentally unfair to allow juvenile adjudications that result from these less



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formal proceedings to be characterized as criminal convictions that may later
enhance adult punishment.” Id. at ¶ 35.
        {¶ 39} Admittedly, the holdings in Apprendi, Bode, and Hand do not
squarely align with this case.         While those cases dealt with sentencing
enhancements, Carnes’s case involves an element of the offense, which is found by
the jury. Even though the jury is the ultimate fact-finder as to the element of a
qualifying juvenile adjudication, in reality, the jury has little choice but to affirm
the juvenile adjudication that was made potentially years before and without the
full due-process rights afforded to a criminal defendant. In this respect, the
principles in Apprendi, Bode, and Hand do apply.
        {¶ 40} In Apprendi, Bode, and Hand, there were constitutional deficiencies
related to the sentence-enhancing violation. In each case, the lower court had
increased the sentence based on the constitutionally deficient enhancement. In this
case, Carnes’s juvenile adjudication did not include all the due-process protections
of an adult criminal conviction, but the court still used it to trigger an adult criminal
sentence 20 years later. The only difference between this case and Apprendi, Bode,
and Hand is that the weapons-under-disability conviction requires a jury finding,
unlike the enhancements in those cases, which were determined by a judge. But as
already explained, any opportunity for the jury to make a real choice is a chimera.
        {¶ 41} The majority points out that “ ‘a legal disability can arise from far
less than a jury-eligible criminal conviction.’ ” Majority opinion at ¶ 11, quoting
State v. Barfield, 2017-Ohio-8243, 87 N.E.3d 233, ¶ 10 (1st Dist.). It is true that
other named disabilities in R.C. 2923.13, i.e., being a fugitive from justice, under
criminal indictment, or adjudicated mentally incompetent or mentally defective, do
not require proof beyond a reasonable doubt. Although these disabilities are not
subject to the highest standards of criminal due process, they do relate to the
defendant’s behavior as an adult, not a juvenile. Punishing an adult defendant



                                           18
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because of a juvenile adjudication is fundamentally different from punishing an
adult defendant for behavior exhibited as an adult.
 D. The General Assembly should rewrite R.C. 2923.13 in light of mounting
           scientific research and recent due-process jurisprudence
       {¶ 42} I am disappointed by the majority’s decision today, but I am more
vexed that the General Assembly has not already taken steps to change this law,
particularly in light of the substantial scientific research and documentation that a
juvenile’s brain is underdeveloped, coupled with the related decisions by this court
and the United States Supreme Court holding that juveniles are less culpable for
their conduct and more likely to benefit from the rehabilitative efforts of our justice
system than adult offenders.
       {¶ 43} Not one person on this court, in the legislature, and I dare say, in the
public at large would want to be held accountable, years later, as an adult, for
decisions that were made as a 16 year old and adjudicated in the juvenile system.
This court has in the past affirmed the legislature’s decision to allow punishment
for certain juvenile offenses to continue into adulthood, but only when it has found
that the law afforded the juvenile sufficient procedural safeguards. R.C. 2923.13
offers no such protections, not even a requirement that the court notify the juvenile
that the disposition carries with it a weapons disability. And when a juvenile does
not know that he has a weapons disability, the process to relieve himself of that
disability has zero meaning.      Without substantial procedural protections, the
consequences of an adjudication of delinquency must have an end that is linked to
the age of the child. To have the consequences follow the juvenile when he
becomes an adult, with no time limitation, is profoundly unfair. I would find it
unconstitutional to use a juvenile adjudication as a predicate disability, I would
strike the relevant language from R.C. 2923.13(A)(2) and (3), and I would reverse
the judgment of the First District Court of Appeals.
       {¶ 44} I dissent.


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                            SUPREME COURT OF OHIO




                              _________________
       Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M.
Heenan, Assistant Prosecuting Attorney, for appellee.
       Timothy Young, Ohio Public Defender, and Peter Galyardt, Assistant
Public Defender, for appellant.
       Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Daniel
T. Van, Assistant Prosecuting Attorney, urging affirmance for amicus curiae
Cuyahoga County Prosecutor’s Office.
       Ronald Lemieux, urging reversal for amicus curiae Buckeye Firearms
Association.
       Juvenile Law Center and Marsha L. Levick; and Winston & Strawn, L.L.P.,
Samuel S. Park, and John E. Drosick, urging reversal for amicus curiae Juvenile
Law Center.
       Nadia N. Seeratan, urging reversal for amicus curiae National Juvenile
Defender Center.
                              _________________




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