         [Cite as State v. Carnes, 2016-Ohio-8019.]
                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO


STATE OF OHIO,                                        :   APPEAL NO. C-150752
                                                          TRIAL NO. B-1301227
   Plaintiff-Appellee,                                :

   vs.                                                :      O P I N I O N.

ANTHONY CARNES,                                       :

   Defendant-Appellant.                               :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 7, 2016


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

Edward Felson, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS



STAUTBERG, Judge.
       {¶1}   The main issue presented in this appeal is whether a prior

uncounseled juvenile adjudication that carried the possibility of confinement and

that was obtained without an effective waiver of counsel can later be used by the

state to prove the “disability” element in R.C. 2923.13(A)(2). The answer is yes.

       {¶2}    Defendant-appellant Anthony Carnes was indicted for having a

weapon while under a disability (“WUD”), in violation of R.C. 2923.13(A)(2).

Carnes’s “disability” was a 1994 juvenile adjudication for an offense that would have

constituted felonious assault had Carnes been an adult. Prior to trial, Carnes moved

the court to dismiss his indictment. He argued that his adjudication could not be

used by the state to prove the disability element of the WUD charge because Carnes

had not been represented by counsel at his adjudication and because, according to

Carnes, his waiver of counsel had been invalid. Along with his motion to dismiss,

Carnes submitted to the court the certified record of his 1994 juvenile court

proceedings. The trial court overruled Carnes’s motion on the ground that Carnes’s

waiver of counsel had been valid. Carnes was later found guilty. The trial court

sentenced him to 30 months’ incarceration and costs. This appeal followed.

      The Propriety of Carnes’s Motion to Dismiss His Indictment

       {¶3}   At the outset, we must determine whether Carnes properly raised his

argument in the trial court. The state contends that, regardless of the merits of

Carnes’s appeal, Carnes’s motion to dismiss was properly denied because his motion

went beyond the indictment itself, and relied upon the record from his 1994 juvenile

court proceedings. The state cites our opinion in State v. Scott, 174 Ohio App.3d

446, 2007-Ohio-7065, 882 N.E.2d 500 (1st Dist.), in support of its position.

       {¶4}   In Scott, codefendants Varian Scott and Corey Troupe moved to

dismiss their indictment on the grounds that the state could not prove that Scott and

Troupe had trafficked in cocaine, and also could not prove the accompanying major



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drug offender specifications. The defendants and the state stipulated to the fact that

the “drugs” at issue did not contain cocaine. The trial court granted Scott and

Troupe’s motion. We reversed. We held that a motion to dismiss an indictment that

challenged the sufficiency of the state’s case was not a proper pretrial motion. Scott

at ¶ 11. Our holding was based on our application of Crim.R. 12(C), which provides

that “[p]rior to trial, any party may raise by motion any defense, objection,

evidentiary issue, or request that is capable of determination without the trial of the

general issue.” Scott and Troupe’s motion challenged the sufficiency of the state’s

evidence—a “general issue” to be determined at trial. Scott at ¶ 8-9. We therefore

held that the motion was improper under Crim.R. 12, and that the court should not

have considered any evidence when ruling on the motion. Scott at ¶ 8-10; see State

v. Moore, 1st Dist. Hamilton No. C-130170, 2013-Ohio-5613; State v. Hoskins, 1st

Dist. Hamilton No. C-090710, 2010-Ohio-2454; State v. Love, 1st Dist. Hamilton No.

C-080184, 2008-Ohio-6833.       In Scott, we further held that Scott and Troupe’s

motion was improper as it was akin to a motion for summary judgment, which is not

provided for in the Rules of Criminal Procedure. Scott at ¶ 9.

       {¶5}   Scott does not apply in this case. Here, Carnes was collaterally

attacking the adjudication that formed the “disability” element of his WUD charge.

Whether Carnes had validly waived his right to counsel in 1994 was not a “general

issue for trial” on his WUD charge. And the Ohio Supreme Court has held that

“Crim.R. 12 permits a court to consider evidence beyond the face of an indictment

when ruling on a pretrial motion to dismiss an indictment if the matter is capable of

determination without trial of the general issue.” State v. Brady, 119 Ohio St.3d 375,

2008-Ohio-4493, 894 N.E.2d 671, ¶ 3; see Crim.R. 12(F) (allowing the court to

consider affidavits, testimony, and exhibits); State v. Knox, 8th Dist. Cuyahoga Nos.

103662 and 103664, 2016-Ohio-5519, ¶ 13-17 (where a motion to dismiss an




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indictment does not require a trial of the general issue, a trial court may consider

evidence beyond the four corners of the indictment).

       {¶6}   Because Carnes’s pretrial motion to dismiss his indictment was

capable of determination without trial of the general issue, the trial court properly

considered evidence aside from the indictment itself when ruling on the motion.

                        The Merits of Carnes’s Motion

       {¶7}   In one assignment of error, Carnes contends that the trial court erred

in failing to dismiss his indictment. We review this argument de novo. State v.

Thompson, 1st Dist. Hamilton No. C-130053, 2013-Ohio-2647, ¶ 4.

       {¶8}   Carnes argues that the state should have been precluded from using

his uncounseled 1994 juvenile adjudication to prove the “disability” element of his

WUD charge because, according to Carnes, he had not validly waived his right to

counsel in the 1994 case. We need not reach the issue of whether there was a valid

waiver, however, because Carnes’s motion failed as a matter of law.

       {¶9}   Carnes relies in large part on State v. Bode, 144 Ohio St.3d 155, 2015-

Ohio-1519, 41 N.E.3d 1156, in support of his argument that his motion to dismiss

should have been granted. In Bode, the Ohio Supreme Court held that “an

adjudication of delinquency may not be used under R.C. 4511.19(G)(1)(d) 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. at syllabus. Carnes essentially argues that Bode should be

extended to prohibit the use of an uncounseled adjudication obtained without a valid

waiver to prove any element of a crime, not just one that enhances punishment. I do

not read Bode so broadly.

       {¶10} The underpinnings of the Bode decision can be traced to the
protections afforded to criminal defendants by the Sixth and Fourteenth

Amendments to the United States Constitution. In Argersinger v. Hamlin, 407 U.S.




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25, 37, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), the United States Supreme Court held

that the Sixth Amendment right to counsel, as applicable to the states through the

Fourteenth Amendment, included a guarantee that, “absent a knowing and

intelligent waiver [of the right to counsel], no person may be imprisoned for any

offense * * * unless he was represented by counsel at his trial.” The Argersinger

Court reasoned that unless a defendant had “the guiding hand of counsel,” his trial

may not have had sufficient guarantees of fairness to support the severe sanction of

imprisonment. Id. at 36-40. A few years later, in Scott v. Illinois, 440 U.S. 367, 373-

374, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), the Court held that the Sixth and

Fourteenth Amendments require that no indigent criminal defendant be sentenced

to a term of imprisonment unless the state afforded him the right to counsel. Citing

Argersinger        and        Scott,        in       Baldasar         v.       Illinois,

446 U.S. 222, 226, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), Justice Marshall, writing

for a plurality of the Court, determined that “a conviction which is invalid for

purposes of imposing a sentence of imprisonment for the offense itself remains

invalid for purposes of increasing a term of imprisonment for a subsequent

conviction.” Id. at 228. The Supreme Court later overruled Baldasar, but held that

an uncounseled prior conviction could be used to enhance a penalty only if the

conviction was valid under Scott. See Nichols v. United States, 511 U.S. 738, 749, 114

S.Ct. 1921, 128 L.Ed.2d 745 (1994).      In Nichols, Justice Souter in his separate

concurrence opined that an uncounseled conviction without a valid waiver of counsel

was not reliable enough to support the severe sanction of imprisonment. Id. at 750

(Souter, J., concurring in judgment).

       {¶11} Based on this line of cases, the Ohio Supreme Court has held similarly.
See State v. Brandon, 45 Ohio St.3d 85, 87, 543 N.E.2d 501 (1989) (holding that a

trial court could not use a prior uncounseled conviction, obtained without a valid

waiver, to enhance the penalty of a later criminal offense.) In State v. Brooke, 113




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Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024, ¶ 9, the Ohio Supreme Court

explicitly recognized that “there is a limited right to collaterally attack a conviction

when the state proposes to use the past conviction to enhance the penalty of a later

criminal offense,” and it reaffirmed that an uncounseled conviction without a valid

waiver could not later be used to enhance the penalty for another crime. In Bode, the

Ohio Supreme Court held that Brooke extended to juvenile adjudications. Bode, 144

Ohio St.3d 155, 2015-Ohio-1519, 41 N.E.3d 1156, at ¶ 1.

       {¶12} The holdings in Brandon, Brooks, and Bode are narrow and
consistent—namely that an uncounseled conviction or adjudication obtained without

a valid waiver of the right to counsel cannot be used to enhance a penalty for a later

crime. Ultimately, these cases turn on the fairness of imposing the severe sanction of

imprisonment where the trial leading to the underlying conviction and the resulting

reliability of that conviction are constitutionally infirm due to a violation of the right

to counsel. An uncounseled conviction obtained without a valid waiver is not infirm

for all uses, however.

       {¶13} In Lewis v. United States, 445 U.S. 55, 67-68, 100 S.Ct. 915, 63
L.Ed.2d 198 (1980), the United States Supreme Court held that it was

constitutionally permissible to use a prior uncounseled felony conviction obtained

without a valid waiver to impose a firearm disability under a federal statute that

made it illegal for a felon to possess a firearm. The Court acknowledged that, under

the Sixth Amendment, an uncounseled conviction could not be used for certain

purposes such as sentencing or penalty enhancement, but reasoned that those cases

turned on the unreliability of the past uncounseled convictions. Id. The reliability of

the underlying felony in Lewis was immaterial because, the Court determined, it was

the mere fact of the conviction that imposed the firearm disability. Id. The Court

reasoned that “Congress could rationally conclude that any felony conviction, even




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an allegedly invalid one, is a sufficient basis on which to prohibit the possession of a

firearm.” Id. at 66.

       {¶14} Likewise, in this case, 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

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

purposes of that statute. Therefore, the case law that Carnes cites in support of his

position on appeal does not apply. Put another way, because Carnes’s 1994

adjudication was not a penalty-enhancing element of his DUS charge, Bode does not

prohibit its use as an element of that charge.

       {¶15} The dissent relies on State v. Hand, __ Ohio St.3d __, 2016-Ohio-
5504, __ N.E.3d __, 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.

       {¶16} Carnes’s sole assignment of error is overruled.          The trial court’s

judgment is affirmed.

                                                                   Judgment affirmed.
DEWINE, J., concurs in judgment only.
CUNNINGHAM, P.J., dissents.

CUNNINGHAM, P.J., dissenting.

       {¶17} I respectfully dissent. While I disagree with the lead opinion’s

assertion that the Ohio Supreme Court’s pronouncements on the use of juvenile

adjudications in subsequent criminal prosecutions have been “narrow,” I agree that

they have been “consistent.” The court has consistently limited their use in adult

prosecutions.




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                      OHIO FIRST DISTRICT COURT OF APPEALS

       {¶18} Only four months after releasing Bode, in Hand, the court reiterated

that “a juvenile adjudication is not a conviction of a crime and should not be treated

as one.” See id. at ¶ 38 and ¶ 14 et seq. It held that a juvenile adjudication, without

regard to whether it was counseled or uncounseled, may not be used to enhance the

degree of or the sentence for a subsequent adult criminal offense.            See id. at

paragraph one of the syllabus. The basis of the court’s decision was its belief that it is

“fundamentally unfair to allow juvenile adjudications that result from * * * less

formal proceedings to be characterized as criminal convictions that may later

enhance adult punishment.” Id. at ¶ 35.

       {¶19} This fundamental unfairness, sufficient to deny a defendant due

process of law, is even more apparent when a juvenile adjudication is the essential

predicate for a criminal proceeding, where its use results not just in a longer

sentence but in a loss of liberty itself. 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. I would

sustain the assignment of error on that basis.



Please note:

       This court has recorded its own entry this date.




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