         [Cite as State v. Carney, 2017-Ohio-8585.]
                      IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                       HAMILTON COUNTY, OHIO




STATE OF OHIO,                                        :   APPEAL NO. C-160660
                                                          TRIAL NO. B-1503485
        Plaintiff-Appellee,                           :
                                                             O P I N I O N.
  vs.                                                 :

FURIOUS CARNEY,                                       :

    Defendant-Appellant.                              :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: November 17, 2017




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

J. Rhett Baker, for Defendant-Appellant.
                        OHIO FIRST DISTRICT COURT OF APPEALS




D ETERS , Judge.

       {¶1}   Following a jury trial, defendant-appellant Furious Carney was

convicted of one count of having weapons while under a disability under R.C.

2923.13(A)(3) and one count of carrying concealed weapons under R.C.

2923.12(A)(2).      He was acquitted of one count of felonious assault with

accompanying firearm specifications.       The trial court sentenced Carney to three

years’ imprisonment on the weapons-under-a-disability charge and 18 months’

imprisonment       on    the   carrying-concealed-weapons     charge,   to   be   served

consecutively. We find no merit in Carney’s two assignments of error, and we affirm

his convictions.


                          I.   Juvenile Adjudication as a Disability

       {¶2}   In his first assignment of error, Carney contends that his conviction for

having weapons while under a disability must be vacated. He argues that under the

Ohio Supreme Court’s decision in State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-

5504, 73 N.E.3d 448, a juvenile adjudication cannot be the disability on which the

conviction is based. This assignment of error is not well taken.

       {¶3}   In Hand, the Ohio Supreme Court held that because a juvenile

adjudication is not established through a procedure that provides a right to a jury

trial, it cannot be used to increase a sentence beyond a statutory maximum or

mandatory minimum. Id. at paragraph two of the syllabus. Carney seeks to extend

that holding to the disability element of having weapons while under a disability.

       {¶4}   This court rejected that argument in State v. Carnes, 2016-Ohio-8019,

75 N.E.3d 774 (1st Dist.). We stated that “the mere fact of Carnes’s 1994 adjudication

imposed a disability that made it illegal under R.C. 2923.13(A)(2) for Carnes to




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possess a firearm in Ohio. The reliability of Carnes’s adjudication is immaterial for

purposes of that statute.” Id. at ¶ 14. We went on to state,

        The dissent relies on State v. Hand * * * for its position that Carnes’s

        adjudication should be off-limits for purposes of establishing the

        disability element of the WUD charge. Hand does not apply in this

        case.   Its holding is limited to banning the use of a juvenile

        adjudication to enhance punishment. It is therefore not relevant to the

        issue raised in this appeal.

Id. at ¶ 15.

        {¶5}    We reiterated that holding in State v. McCray, 1st Dist. Hamilton No.

C-160272, 2017-Ohio-2996. We stated,

        In State v. Carnes * * * , we recently declined to extend the application

        of Hand to bar the use of a juvenile adjudication to prove the disability

        element    of     a   weapon-under-disability    charge    under     R.C.

        2923.13(A)(2). Therefore, we hold that McCray’s right to due process

        was not violated by the use of his prior juvenile adjudication to prove

        the disability element of his weapon-under-disability convictions.

Id. at ¶ 21.

        {¶6}    Very recently, in State v. Barfield, 1st Dist. Hamilton No. C-160768,

2017-Ohio-8243, we reaffirmed and explained our holding in Carnes. We held that

Hand was not dispositive of that case, but instead Lewis v. United States, 445 U.S.

55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), controlled. In Lewis, the United States

Supreme Court held that an invalid felony conviction could constitute a disability to

prohibit the possession of a firearm without running afoul of the United States

Constitution. Id. at 66-67; Barfield at ¶ 9. It reasoned that “the federal gun laws * *

* focus not on reliability, but on the mere fact of conviction, or even indictment, in



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order to keep firearms away from potentially dangerous persons.” Barfield at ¶ 9,

quoting Lewis at 67.

       {¶7}   We explained,

              Barfield argues that because a prior adjudication is not reliable

       enough to enhance a sentence or the degree of an offense, it is not

       reliable enough to prove a disability element in R.C. 2923.13. We do

       not read Hand so expansively.        Hand concerned the due process

       implications of a statute that (1) equated a juvenile adjudication with

       an adult conviction, and (2) treated the adjudication as a conviction to

       enhance a sentence.      The statute in this case does not treat an

       adjudication as an adult conviction. The juvenile adjudication is a

       disability in its own right. Further, the disability element in the statute

       is not a penalty-enhancing element. It is an element of the crime.

       Consequently, the due process concerns raised in Hand do not exist in

       this case.

                                          ***

              Under the Lewis line of cases, a legal disability can arise from

       far less than a jury-eligible criminal conviction. For example, under

       R.C. 2923.13(A)(1)-(5), a person is under a “disability” if he or she is a

       fugitive from justice, is under indictment for certain felony offenses, is

       drug-dependent or in danger of drug dependence, 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 mentally ill, or is an involuntary patient.

       None of these “disabilities” come with the procedural or substantive

       safeguards that precede a valid adult criminal conviction. To hold as



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       Barfield suggests would effectively eradicate prohibitions on the

       possession of weapons by anyone other than an adult convict who had

       been afforded the right to a jury trial. Lewis clearly states the United

       States Constitution does not require this result.

Barfield at ¶ 7 and 10. Accord State v. Hudson, 7th Dist. Mahoning No. 15 MA 0134,

2017-Ohio-645, ¶ 49-51 (applying Hand “would essentially mean a prior juvenile

offender could not be prohibited from carrying a firearm”).

       {¶8}    We continue to follow our precedent as set forth in Carnes, McCray

and Barfield. We hold that the Ohio Supreme Court’s decision in Hand does not

preclude Carney’s juvenile adjudication from being the disability upon which his

weapons-under-a-disability conviction was based. We, therefore, decline to vacate

the conviction on that basis.


                          II.   Ineffective Assistance of Counsel

       {¶9}    Under his first assignment of error, Carney also contends that his

counsel was ineffective for failing to raise the issue of the alleged unconstitutionality

of the use of the juvenile adjudication as the disability before or during the jury trial.

He argues that his counsel should have filed a pretrial motion to dismiss, should

have refused to stipulate to the disability, and should have objected to any attempt to

admit evidence of the juvenile adjudication.

       {¶10} As Carney acknowledges, his counsel did not have the benefit of the

Ohio Supreme Court’s decision in Hand during the jury trial because it had not yet

been released. Counsel did raise the issue at the sentencing hearing, stating that the

weapons-under-disability conviction was not “applicable to Mr. Carney” because it

was based on a juvenile adjudication. Carney further acknowledges that his counsel




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“aggressively defended” him in this case and won an acquittal on the most serious

charge against him.

       {¶11} Carney has failed to demonstrate that counsel’s performance was

deficient or that but for counsel’s deficient performance, the result of the proceeding

would have been different. Therefore, he has failed to meet his burden to show

ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687-

689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Hamblin, 37 Ohio St.3d 153,

155-156, 524 N.E.2d 476 (1988); State v. Hackney, 1st Dist. Hamilton No. C-150375,

2016-Ohio-4609, ¶ 36-38. We overrule Carney’s first assignment of error.


                             III. Vindictiveness in Sentencing

       {¶12} In his second assignment of error, Carney contends that he was

improperly sentenced. First, he argues that the trial court improperly indicated it

would impose the maximum sentence if he did not take a plea bargain, and that he

was penalized for exercising his right to a jury trial.

       {¶13} The Ohio Supreme Court has held that no presumption of

vindictiveness exists when a defendant rejects a plea bargain and is subsequently

sentenced to a harsher term of imprisonment. The defendant bears the burden to

show that the judge acted vindictively. State v. Rehab, 150 Ohio St.3d 152, 2017-

Ohio-1401, 80 N.E.3d 431, ¶ 3. An appellate court may reverse a sentence for

vindictiveness only if, after examining the entire record, it clearly and convincingly

finds that the sentence was based on actual vindictiveness. Id.

       {¶14} The record does not clearly and convincingly demonstrate that

Carney’s sentences were the result of actual vindictiveness. Carney relies on State v.

Stafford, 158 Ohio App.3d 509, 2004-Ohio-3893, 817 N.E.2d 411 (1st Dist.), which is

distinguishable. In Stafford, the trial court actively engaged in plea discussions and



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threatened that it would give the defendant a “heavier sentence” if he exercised his

right to a jury trial.    Therefore, we held that the trial court had violated the

defendant’s due-process rights. Id. at ¶ 26.

       {¶15} In this case, the trial court’s comments about which Carney complains

came as part of a discussion about Carney’s attorney. Counsel called the trial court’s

attention to Carney’s dissatisfaction with counsel’s representation. The court was

trying to explain to Carney that counsel was a good attorney who had done a good

job in representing him.      As an illustration, it pointed out that counsel had

negotiated a good deal for him. When Carney persisted, the court discussed the

maximum penalty he could receive if convicted. The court did not urge him to accept

the deal or advise him against going to trial. In fact, the jury had already been

selected.

       {¶16} At sentencing, the trial court did not discuss the plea bargain in any

way. It discussed the serious nature of the charges and Carney’s lengthy criminal

history. But the court also listened to Carney and to his family members who came

to speak on his behalf.       While the court ordered the two sentences to run

consecutively, it did not impose the maximum terms. Under the circumstances,

Carney has failed to demonstrate that the sentence was the result of actual

vindictiveness by the trial court. See Rahab, 150 Ohio St.3d 152, 2017-Ohio-1401, 80

N.E.3d 431, at ¶ 19.


                               IV. Consecutive Sentences

       {¶17} Next, Carney argues that the trial court erred in imposing consecutive

sentences. The trial court made the findings required by former R.C. 2929.14(C)(4)

and set forth those findings in its judgment entry. See State v. Bonnell, 140 Ohio

St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus; State v. Simmons, 2014-Ohio-



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3695, 19 N.E.3d 517, ¶ 114-117 (1st Dist.). Carney argues that he had a minimal adult

criminal history, and that, following Hand, the court could not have considered his

juvenile adjudications in imposing consecutive sentences.

       {¶18} This court rejected that argument in State v. Bromagen, 1st Dist.

Hamilton No. C-120148, 2012-Ohio-5757. We noted that the applicable statutes

specifically allowed the sentencing court to consider the defendant’s history of

criminal conduct. We stated,

           As Bromagen correctly notes, a juvenile-delinquency adjudication

           is not a criminal conviction. * * * But it does not necessarily follow

           from that statement that juvenile adjudications cannot be used to

           demonstrate a history of criminal conduct. If, as Bromagen argues,

           the General Assembly had intended to limit a sentencing court's

           review of prior actions to criminal convictions, it could have done

           so. But the legislature, in both former R.C. 2929.14(E)(4)(c) and

           newly enacted R.C. 2929.14(C)(4)(c), at issue here, has, [sic] stated

           that “an offender's history of criminal conduct” can support the

           imposition of consecutive sentences. We must give effect to the

           words the General Assembly actually used.            In determining

           legislative intent, we are not free to delete words or insert words

           not used.

(Emphasis sic.) Id. at ¶ 8.

       {¶19} We also noted that the applicable statutes “mandate that a sentencing

court is required to consider juvenile adjudications when it determines the likelihood

of an adult offender’s recidivism.” Id. at ¶ 10. We further stated,

       Clearly an offender’s prior criminal conduct bears directly on a

       sentencing court’s decision on the length of sentence to impose. And a



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       sentencing court is entitled to rely on a defendant’s juvenile history of

       criminal conduct in deciding whether consecutive sentences are

       necessary.

Id. at ¶ 9.

       {¶20} We note that Bromagen was decided before Hand. But Hand did not

involve the application of R.C. 2929.14, which governs the imposition of consecutive

sentences.    We decline to expand the holding of Hand to the imposition of

consecutive sentences. Absent further guidance from the Ohio Supreme Court, we

will continue to follow our precedent in Bromagen.

       {¶21} Under the circumstances, we cannot hold that the trial court erred in

imposing consecutive sentences. We overrule Carney’s second assignment of error.


                                      V. Summary

       {¶22} In sum, we find no merit in Carney’s two assignments of error. The

trial court did not err in convicting Carney of having weapons while under a

disability or in sentencing him. Consequently, we overrule his two assignments of

error and affirm the trial court’s judgment.

                                                                  Judgment affirmed.


MYERS, J., concurs.
ZAYAS, P.J., concurs in part and dissents in part.


ZAYAS, P.J., concurring in part and dissenting in part.

       {¶23} I respectfully dissent from the majority opinion with regard to the use

of a prior juvenile adjudication as an element of an adult 0ffense. I agree with Judge

Cunningham’s dissent in State v. Carnes that: “If juvenile adjudications are not

reliable enough to enhance a criminal sentence, surely they are not sufficiently

reliable to alone sustain proof beyond a reasonable doubt of an element of a crime.”


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Carnes, 2016-Ohio-8019, 75 N.E.3d 774, at ¶ 19 (Cunningham, P.J., dissenting).

Therefore, I would sustain the first assignment of error, reverse the trial court’s

judgment in part, and vacate the conviction for having weapons under a disability. I

would affirm the trial court’s judgment in all other respects.


Please note:
       The court has recorded its own entry this date.




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