[Cite as In re: C.W., 2018-Ohio-3172.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA



                                  JOURNAL ENTRY AND OPINION
                                          No. 106465




                                           IN RE: C.W.
                                         A MINOR CHILD




                                          JUDGMENT:
                                           AFFIRMED




                                        Civil Appeal from the
                               Cuyahoga County Court of Common Pleas
                                          Juvenile Division
                                       Case No. DL 17104838


        BEFORE: Celebrezze, J., Boyle, P.J., and Jones, J.

        RELEASED AND JOURNALIZED: August 9, 2018
ATTORNEYS FOR APPELLANT

Mark A. Stanton
Cuyahoga County Public Defender
BY: Erika B. Cunliffe
Assistant Public Defender
Courthouse Square, Suite 200
310 Lakeside Avenue
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Zen Canaday
Assistant Prosecuting Attorney
9300 Quincy Avenue, Suite 4100
Cleveland, Ohio 44106


ALSO LISTED:

C.W.
3644 Bosworth Road
Cleveland, Ohio 44111

E.W.
873 East 73rd Street
Cleveland, Ohio 44103
FRANK D. CELEBREZZE, JR., J.:

       {¶1}      Appellant-delinquent, C.W. (“appellant”), brings this appeal challenging a

magistrate’s denial of his motion to dismiss.   After a thorough review of the record and law, this

court affirms.

                              I.   Factual and Procedural History

       {¶2} On March 24, 2017, Cleveland Metropolitan Housing Authority police officers were

dispatched to the intersection of East 30th Street and Central Avenue in Cleveland for a noise

disturbance. As officers arrived, they observed a vehicle in a parking lot occupied by four

young males. As officers approached the vehicle, they observed the driver, later identified as

appellant, place an item under the driver’s seat. Officers ordered the occupants out of the

vehicle and as officers spoke with appellant, appellant told officers that he had placed a handgun

under the driver’s seat.

       {¶3} Appellant was charged in Cuyahoga J.C. No. DL 17104838 for the following

offenses: Count 1, having weapons while under disability, a third-degree felony in violation of

R.C. 2923.13(A)(2), with a one-year firearm specification; Count 2, carrying a concealed

weapon, a fourth-degree felony in violation of R.C. 2923.12(A)(2); and Count 3, improper

handling a firearm in a motor vehicle, a fourth-degree felony in violation of R.C. 2923.16(B).

The weapons under disability charge alleged that appellant had a previous adjudication for

felonious assault that prohibited him from carrying a firearm.

       {¶4} The matter proceeded to a trial before the juvenile court magistrate. Prior to trial

commencing, the state dismissed the one-year firearm specification attached to Count 1. Also,
prior to trial, appellant’s counsel filed a motion to dismiss the having weapons while under

disability adjudication arguing that the basis for the disability was itself a juvenile adjudication,

and not a criminal conviction.      The magistrate denied appellant’s motion, and the matter

proceeded to trial. The magistrate found appellant guilty on all three counts and appellant was

adjudicated delinquent.

        {¶5} Thereafter, appellant’s trial counsel filed an objection to the magistrate’s decision

denying the motion to dismiss.      After a hearing on the issue, the juvenile court overruled

appellant’s objection and adopted the magistrate’s decision. It is from this ruling that appellant

now appeals, assigning the following assignment of error for our review.

        I. Given the Ohio Supreme Court’s decision in State v. Hand, the juvenile court
        violated [appellant’s] rights under the state and federal constitutions by relying on
        a previous adjudication as the predicate disability element for the offense of
        having a weapon under disability when it found [appellant] delinquent.

                                      II.   Law and Analysis

        {¶6} In appellant’s sole assignment of error, he argues that the juvenile court erred when

it adjudicated him delinquent of having weapons while under disability, because it erred in using

a prior juvenile adjudication as the “disability” element of the offense.    In so doing, appellant

argues that the juvenile court’s decision denying his motion to dismiss is in direct contradiction

to the Ohio Supreme Court’s ruling in State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73

N.E.3d 448.

        {¶7} In Hand, the Supreme Court of Ohio held that the use of a juvenile adjudication as

the equivalent of an adult conviction to enhance a penalty for a later crime is unconstitutional,

because, unlike an adult conviction, a juvenile adjudication does not involve the right to a trial by

jury.   Id. at ¶ 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.

State v. Ortiz, 8th Dist. Cuyahoga No. 105301, 2017-Ohio-9157, ¶ 10.

         {¶8} In his motion to dismiss, appellant asserted that the logic of Hand should extend to

his case and prevent the juvenile court from considering his prior juvenile adjudication to support

his having a weapon while under disability adjudication. In committing the offense of having

weapons while under disability, the statute requires an offender to either have a prior conviction

or a prior juvenile adjudication. Therefore, “[u]nlike the statute that was struck down in Hand,

the statute at issue, R.C. 2923.13(A)(2), does not treat a prior juvenile adjudication as a

conviction.” State v. McComb, 2017-Ohio-4010, 91 N.E.3d 255, ¶ 26 (2d Dist.).

         Rather, a prior juvenile adjudication and conviction are treated as alternative
         elements necessary to establish the offense of having weapons while under
         disability. Hand does not ban the use of a prior juvenile adjudication as an
         element of an offense; rather, Hand bans the use of a juvenile adjudication to
         enhance a penalty by treating the adjudication as an adult conviction.

McComb at id.          The Second District further noted the strict holding in Hand that “‘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.’” Id., quoting

Hand at ¶ 37.

         {¶9} This court has previously rejected the argument raised by appellant in Ortiz1 and

State v. Stewart, 8th Dist. Cuyahoga No. 105154, 2017-Ohio-2993. Albeit in those particular


         1
             State v. Ortiz, Ohio Supreme Court Case No. 2018-0042, is presently pending before the Ohio Supreme
Court.
cases, the issue before the court was an adult defendant not a juvenile defendant, the essence of

the argument is identical.    In Stewart and Ortiz, we declined to interpret Hand to negate the

“disability” element of the offense of having weapons while under 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.
Stewart at ¶ 6, citing Hand at ¶ 36-37. Thus, we decline to interpret the ruling in Hand to be

applicable to a juvenile charged with having weapons while under disability where the disability

element constitutes a prior juvenile adjudication.

        {¶10} Further, as this court noted in Ortiz:

        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, 92 N.E.3d 213 (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, 91 N.E.3d 288 (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, 2017-Ohio-645, 85 N.E.3d 371 (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).”).

Ortiz, 8th Dist. Cuyahoga No. 105301, 2017-Ohio-9157, at ¶ 12.         See also State v. Buttery, 1st

Dist. Hamilton No. C-160609, 2017-Ohio-9113, ¶ 21 (“[w]e hold that Hand does not bar the use

of [the defendant’s] juvenile adjudication as the basis of his indictment and conviction for failing

to register.”).
       {¶11} In further examining the appellate districts for cases of similar facts and

circumstances as in the instant matter, we note that this appears to be a case of first impression,

where a juvenile adjudication is used as the “disability” element of a juvenile adjudication for

having weapons while under disability. From our review of the above case law, Ohio appellate

districts have all agreed that an adult defendant may be charged with having weapons while

under disability where the disability element is a juvenile adjudication. Thus, we find the same

analysis indistinguishable to appellant’s arguments before this court.

       {¶12} Accordingly, based on the precedent established in this appellate district and

several other appellate districts in the state of Ohio, we conclude that the trial court did not err in

refusing to apply the holding in Hand to appellant’s motion to dismiss the charge of having

weapons while under disability because Hand does not apply to R.C. 2923.13(A)(2). Therefore,

we hold that the use of a juvenile adjudication to support an adjudication of having weapons

while under disability does not violate a defendant’s constitutional right to due process, whether

that defendant is charged within the juvenile system or the adult criminal system. See Ortiz.

See also Stewart, 8th Dist. Cuyahoga No. 105154, 2017-Ohio-2993.

       {¶13} Lastly, to the extent that appellant argues that his adjudication for having weapons

while under disability violates his rights under the Second Amendment to the United States

Constitution, pursuant to Dist. of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.E.2d

637 (2008), and McDonald v. Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.E.2d 894 (2010),

we find no merit to this argument.

       {¶14} Appellant’s sole assignment of error is overruled.

                                         III.   Conclusion

       {¶15} The trial court did not err in denying appellant’s motion to dismiss.          The Ohio
Supreme Court’s decision in Hand does not ban the use of a prior juvenile adjudication as the

disability element of the offense of having weapons while under disability, pursuant to R.C.

2923.13(A)(2).

       {¶16} Judgment affirmed.

       It is ordered that appellee recover from appellant 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, juvenile division, 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.



FRANK D. CELEBREZZE, JR., JUDGE

MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR
