[Cite as State v. Jones, 2017-Ohio-9119.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                   :       Hon. William B. Hoffman, J.
                                             :       Hon. Earle E. Wise, Jr., J.
-vs-                                         :
                                             :
MALIK D. JONES                               :       Case No. 2017CA00064
                                             :
        Defendant-Appellant                  :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 2016CR1423




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    December 18, 2017




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOHN D. FERRERO                                      BARRY T. WAKSER
Prosecutor                                           Stark County
By: KATHLEEN O. TATARSKY                             Public Defender's Office
Assistant Prosecutimg Attorney                       201 Cleveland Avenue N. W.
110 Central Plaza South, Suite 510                   Suite 104
Canton, OH 44702                                     Canton, OH 44702
Stark County, Case No. 2017CA00064                                                       2

Wise, Earle, J.


       {¶ 1} Defendant-Appellant, Malik Jones appeals the November 30, 2016

judgment of the Stark County Court of Common Pleas which denied Jones' motion to

dismiss the charge of having weapons under disability.

                             FACTS AND PROCEDURAL HISTORY

       {¶ 2} In September 2016, the Stark County Grand Jury indicted Jones on one

count of having weapons under disability, one count of carrying concealed weapons, one

count of defacing the identification marks of a firearm, and one count of possession of

cocaine. As to the charge of weapons under disability, Jones' disability stemmed from a

prior juvenile adjudication for assault, a felony of the fourth degree.

       {¶ 3} Because Jones' disability stemmed from a juvenile adjudication, Jones filed

a motion to dismiss the charge based on the Supreme Court of Ohio's decision in State

v. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448. Hand held that treating a

juvenile adjudication as the equivalent of an adult conviction in order to either enhance

the degree of a charged offense, or the resulting sentence, is a violation of due process.

Id., paragraph one of the syllabus.

       {¶ 4} On November 30, 2016, the trial court overruled Jones' motion finding Hand

was distinguishable from Jones' case.

       {¶ 5} On February 1, 2017, Jones pled no contest to the indicted offenses. The

trial court found him guilty and convicted him. Following a pre-sentence investigation, the

trial court imposed a jointly recommended sentence of 18 months incarceration, reserved,

pending Jones' satisfactory completion of three years community control.

       {¶ 6} Jones now brings this appeal raising one assignment of error:
Stark County, Case No. 2017CA00064                                                       3


                                             I

      {¶ 7} THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION

TO DISMISS THE CHARGE OF HAVING WEAPONS UNDER DISABILITY.

      {¶ 8} Jones argues the trial court should have dismissed the charge of having

weapons under disability based on the authority of Hand. We disagree.

      {¶ 9}   State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448,

involved the use of a prior juvenile adjudication for aggravated robbery to enhance the

level of Hand's sentence. The opinion examined R.C. 2901.08(A) and R.C. 2929.13(F)(6).

The former allows a juvenile adjudication to be treated as a prior conviction in certain

circumstances, and the latter requires the imposition of a mandatory prison term for any

first or second degree felony if the offender has previously been convicted of a first or

second degree felony. At paragraph one of the syllabus, the Court held:



      1. R.C. 2901.08(A) violates the Due Process Clauses of Article I, Section

      16 of the Ohio Constitution because it is fundamentally unfair to treat a

      juvenile adjudication as a previous conviction that enhances either the

      degree of the sentence for a subsequent offense committed by an adult.



      {¶ 10} The reasoning behind this holding included the fact that "juvenile law and

criminal law are not synonymous." Hand at ¶ 13. The court noted that while juveniles are

afforded a wide range of due process protections during adjudicatory proceedings, they

are nonetheless not entitled to a jury trial. That being true, the Court found the use of a

juvenile adjudication to enhance the degree of, or the sentence for a subsequent offense
Stark County, Case No. 2017CA00064                                                        4

a violation of due process under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348,

147 L.Ed.2d 435 (2000). Apprendi 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 must

be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi at 420. The

Hand Court additionally found pursuant to United States v. Tighe, 266 F.3d 1187 (9th Cir.

2001), that the "prior conviction" exception of Apprendi " 'must be limited to prior

convictions that were themselves obtained through proceedings that included the right to

a jury trial * * * ' " Hand at ¶ 28, citing Tighe at 1194.

       {¶ 11} In this matter, however, we are asked to apply the holding of Hand to R.C.

2923.13, the weapons under disability statue. That statute states in relevant part:



              (A) Unless relieved from disability under operation of law or legal

               process, no person shall knowingly acquire, carry, or use a firearm

               or dangerous ordinance if any of the following apply:

               ***


               (2) The person is under indictment for, or has been convicted of any

               felony 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.



       {¶ 12} Thus, unlike the statutes at issue in Hand, R.C. 2923.13 does not enhance

the degree of or sentence for an offense. Rather, a prior juvenile adjudication for the
Stark County, Case No. 2017CA00064                                                            5


commission of an offense, which if committed by an adult would be a felony offense of

violence, is an element of the offense of possessing weapons under disability.

       {¶ 13} Jones argues pursuant to Hand and Apprendi, that juvenile adjudications

determined in a civil proceeding, without a jury, cannot serve as the predicate for a later

adult conviction for having weapons under disability.

       {¶ 14} We find Hand and Apprendi inapplicable to having weapons under disability.

The juvenile adjudication is the disability. It does not, as was the case in Hand and

Apprendi, impact the degree of or sentence for the offense. Thus the due process

concerns present in Hand and Apprendi are absent here.

       {¶ 15} Instead, we find as the First District recently found -- that the focus of our

inquiry is the existence of the disability, not its reliability, and therefore the United States

Supreme Court's decision in Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63

L.Ed2d 198 (1980), and not Apprendi, controls the issue presented here. State v. Barfield,

___ N.E.2d ___, 2017-Ohio-8243 ¶ 8.

       {¶ 16} Lewis involved the use of an uncounseled felony conviction as a predicate

for a later charge of knowingly receiving or possessing a firearm. The Lewis court held

that because the focus of federal gun regulations is to keep firearms out of the hands of

those considered potentially dangerous, an invalid felony conviction can serve as the

disability prohibiting possession of a firearm without offending the United States

Constitution. Lewis at 66-67.

       {¶ 17} Under Lewis, a disability may attach without a criminal conviction tried to a

jury. Indeed, the disabilities enumerated in R.C. 2923.13(A)(1) – (5) include statuses that

do not require submission to a jury. Specifically, being under indictment for a felony drug
Stark County, Case No. 2017CA00064                                                      6


offense, being a drug dependent person, in danger of being drug dependent, or a chronic

alcoholic, being under adjudication of mental incompetence, mental defect, or having

been committed to a mental institution.

       {¶ 18} Our brethren in the First, Second, Seventh, Eighth, and Tenth Districts have

rejected the argument Jones advances here. State v. Carnes, First Dist. Hamilton No. C-

150752, 2016-Ohio-8019, appeal allowed, State v. St. Jules, 2nd Dist. Montgomery App.

No. 27405, 2017-Ohio-794, State v. Hudson, 7th Dist. Mahoning App. No. 15MA0134,

2017-Ohio-645, State v. Stewart, 8th Dist. Cuyahoga App. No. 105154, 2017-Ohio-2993,

State v. Brown, 10th Dist. Franklin App. No. 16AP-753, 2017-Ohio-7134. We join these

districts in concluding that Hand does not apply to R.C. 2923.13(A)(2). Therefore, the use

of a juvenile adjudication did not violate Jones' due process rights.
Stark County, Case No. 2017CA00064                     7


      {¶ 19} The sole assignment of error is denied.


By Wise, Earle, J.

Gwin, P.J. and

Hoffman, J. concur.



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