[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Hand, Slip Opinion No. 2016-Ohio-5504.]




                                           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. 2016-OHIO-5504
              THE STATE OF OHIO, APPELLEE, v. HAND, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
       may be cited as State v. Hand, Slip Opinion No. 2016-Ohio-5504.]
R.C. 2901.08(A) violates the Due Process Clauses of Article I, Section 16 of the
        Ohio Constitution and the Fourteenth Amendment to the United States
        Constitution because 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—A juvenile
        adjudication cannot be used to increase a sentence beyond a statutory
        maximum or mandatory minimum.
   (No. 2014-1814—Submitted December 1, 2015—Decided August 25, 2016.)
      APPEAL from the Court of Appeals for Montgomery County, No. 25840,
                                      2014-Ohio-3838.
                                 ____________________
                             SUPREME COURT OF OHIO




                            SYLLABUS OF THE COURT
1.     R.C. 2901.08(A) violates the Due Process Clauses of Article I, Section 16
           of the Ohio Constitution and the Fourteenth Amendment to the United
           States Constitution because 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.
2.     Because a juvenile adjudication is not established through a procedure that
           provides the right to a jury trial, it cannot be used to increase a sentence
           beyond a statutory maximum or mandatory minimum. (Apprendi v.
           New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and
           Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d
           314 (2013), followed.)
                             ____________________
       LANZINGER, J.
       {¶ 1} In this case, we are asked to determine whether it is a violation of due
process to treat a juvenile adjudication as the equivalent of an adult conviction for
purposes of enhancing a penalty for a later crime. We hold that it is.
                                Case Background
       {¶ 2} Appellant, Adrian Hand Jr., entered no-contest pleas in Montgomery
County Common Pleas Court in case No. 2012-CR-00650/2 to three first-degree
felonies—aggravated burglary in violation of R.C. 2911.11(A)(2), aggravated
robbery in violation of R.C. 2911.01.(A)(1), and kidnapping in violation of R.C.
2905.01(A)(2)—and two second-degree felonies—felonious assault in violation of
R.C. 2903.11 (A)(1) and (A)(2). Each count had a three-year firearm specification
attached to it, and Hand also entered no-contest pleas to the specifications.
       {¶ 3} During the plea hearing, the trial court noted that the parties agreed to
a total six-year prison term with three of the years being mandatory because they
are related to the merged firearm specifications, R.C. 2929.14 and 2941.145, but


                                          2
                                January Term, 2016




that the parties disputed whether the three years for the other offenses was also a
mandatory term. The question was whether Hand’s prior juvenile adjudication for
aggravated robbery under R.C. 2911.01(A)(3) should operate as a first-degree-
felony conviction to enhance his sentence.          R.C. 2929.13(F)(6) requires a
mandatory prison term for a first- or second-degree felony if the offender has
previously been convicted of or pled guilty to a first- or second-degree felony.
       {¶ 4} After the parties briefed the sentencing issue, the trial court relied on
R.C. 2901.08(A) and ruled that Hand’s prior juvenile adjudication required
imposition of mandatory prison terms under R.C. 2929.13(F). The trial court
merged the allied offenses and sentenced him to a mandatory three-year prison term
for each of the aggravated-burglary, aggravated-robbery, and felonious-assault
counts. These sentences were to be served concurrently with each other but
consecutively to the mandatory three-year prison term for the firearm specification,
for an aggregate six-year mandatory term of incarceration.
       {¶ 5} Hand appealed his sentence. He agreed that the three-year term for
the firearm specification was a mandatory term, but he argued that the three-year
term for the other offenses should not be mandatory. The Second District Court of
Appeals affirmed the trial court’s judgment. The appellate court, in a two-to-one
decision, rejected Hand’s arguments that treating his juvenile adjudication as a prior
conviction violated his due-process rights because he was not afforded the right to
a jury trial in juvenile court. The court also did not find a violation of Apprendi v.
New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
       {¶ 6} Hand appealed to this court, and we accepted jurisdiction on the
following proposition of law:


               The use of a prior juvenile adjudication to enhance an adult
       sentence violates a defendant’s right to due process as guaranteed
       by the Fourteenth Amendment to the United States Constitution and


                                          3
                              SUPREME COURT OF OHIO




       Article I, Section 16 of the Ohio Constitution, and the right to trial
       by jury as guaranteed by the Sixth Amendment to the United States
       Constitution and Article I, Section 5 of the Ohio Constitution.


142 Ohio St.3d 1409, 2015-Ohio-1099, 27 N.E.3d 539.
                                       Analysis
       {¶ 7} The question here is whether a statute that permits a previous juvenile
adjudication to count as a prior conviction that enhances a later adult sentence by
requiring a mandatory prison term violates due process under Apprendi. The
statutory language must be examined along with existing case law before we turn
to the constitutional question of due process.
            The Statutes Involved: R.C. 2929.13(F)(6) and 2901.08(A)
       {¶ 8} For Hand’s first-degree- and second-degree-felony convictions, the
trial court was required to impose a mandatory prison term if Hand had previously
been convicted of a first- or second-degree felony. R.C. 2929.13(F) provides:


               Notwithstanding divisions (A) to (E) of this section, the
       court shall impose a prison term or terms under sections 2929.02 to
       2929.06, section 2929.14, section 2929.142, or section 2971.03 of
       the Revised Code and * * * shall not reduce the term or terms
       pursuant to section 2929.20, section 2967.19, section 2967.193, or
       any other provision of Chapter 2967. or Chapter 5120. of the
       Revised Code for any of the following offenses:
               ***
               (6) Any offense that is a first or second degree felony and
       that is not set forth in division (F)(1), (2), (3), or (4) of this section,
       if the offender previously was convicted of or pleaded guilty to
       aggravated murder, murder, any first or second degree felony, or an


                                           4
                                January Term, 2016




       offense under an existing or former law of this state, another state,
       or the United States that is or was substantially equivalent to one of
       those offenses.


(Emphasis added.)
       {¶ 9} R.C. 2929.13 does not define the term “convicted,” so in determining
whether Hand’s prior juvenile adjudication should be counted as a prior conviction,
the trial court relied on R.C. 2901.08(A), which provides:


               If a person is alleged to have committed an offense and if the
       person previously has been adjudicated a delinquent child or
       juvenile traffic offender for a violation of a law or ordinance, * * *
       the 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 upon the person relative to the
       conviction or guilty plea.


(Emphasis added.) Thus, when read together, the two statutes say a juvenile
adjudication counts as a previous conviction that can enhance either the degree of
a later offense or a subsequent sentence to include mandatory prison time.
       {¶ 10} This court has mentioned R.C. 2901.08 in its opinions only four
times, and the statute was actually at issue in only one of them. See State v. Adkins,
129 Ohio St.3d 287, 2011-Ohio-3141, 951 N.E.2d 766; In re C.P., 131 Ohio St.3d
513, 2012-Ohio-1446, 967 N.E.2d 729; State v. Howard, 134 Ohio St.3d 467, 2012-
Ohio-5738, 983 N.E.2d 341; State v. Bode, 144 Ohio St.3d 155, 2015-Ohio-1519,
41 N.E.3d 1156. In Adkins, we held that a juvenile adjudication could count as one


                                          5
                            SUPREME COURT OF OHIO




of the five offenses used to enhance a charge of operating a motor vehicle while
under the influence of alcohol (“OVI”) under R.C. 4511.19(A)(1)(a). In that case,
however, the issue was whether R.C. 2901.08 was unconstitutionally retroactive,
and we held that it was not, because the OVI statute did not add an additional
punishment to the juvenile disposition but rather punished the defendant for the
current offense. Id. at ¶ 15. The juvenile adjudication was unaffected and remained
a juvenile adjudication. Id. at ¶ 19. Howard, In re C.P., and Bode did no more
than mention the holding in Adkins, and none of the four cases provided an analysis
of due process. Hand, however, contends that treating his juvenile adjudication as
a conviction violates his due-process rights under the Ohio and United States
Constitutions and is inconsistent with Apprendi.
                       Due Process and the Juvenile Court
       {¶ 11} Hand asserts that his right to due process was violated when his past
juvenile adjudication was used to make his prison term mandatory. Article I,
Section 16 of the Ohio Constitution provides: “All courts shall be open, and every
person, for an injury done him in his land, goods, person, or reputation, shall have
remedy by due course of law, and shall have justice administered without denial or
delay.” The “due course of law” provision is the equivalent of the “due process of
law” provision in the Fourteenth Amendment to the United States Constitution.
Direct Plumbing Supply Co. v. Dayton, 138 Ohio St. 540, 544, 38 N.E.2d 70 (1941).
       {¶ 12} “For all its consequence, ‘due process’ has never been, and perhaps
can never be, precisely defined.” Lassiter v. Dept. of Social Servs. of Durham Cty.,
North Carolina, 452 U.S. 18, 24, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). It is a
flexible concept that varies depending on the importance attached to the interest at
stake and the particular circumstances under which the deprivation may occur.
Walters v. Natl. Assn. of Radiation Survivors, 473 U.S. 305, 320, 105 S.Ct. 3180,
87 L.Ed.2d 220 (1985). “Applying the Due Process Clause is therefore an uncertain
enterprise which must discover what ‘fundamental fairness’ consists of in a


                                         6
                                January Term, 2016




particular situation by first considering any relevant precedents and then by
assessing the several interests that are at stake.” Lassiter at 24-25.
       {¶ 13} The court of appeals rejected Hand’s due-process claims with little
analysis. The dissenting appellate judge, however, commented that “[t]here are a
significant number of law review articles which question on due process grounds
whether juvenile court adjudications should be considered the equivalent of
criminal convictions for purposes of sentence enhancement statutes.” 2d Dist.
Montgomery No. 25840, 2014-Ohio-3838, at ¶ 11 (Donovan, J., dissenting). She
concluded that it is inconsistent to deem juvenile adjudications civil for some
purposes but criminal for the purpose of classifying them as prior convictions for
sentencing enhancements. Id. at ¶ 12. When we examine the nature of the juvenile
system, the accuracy of this statement becomes apparent. Juvenile law and criminal
law are not synonymous.
       {¶ 14} Juvenile courts hold a “unique place in our legal system.” In re C.S.,
115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, ¶ 65. They are legislative
creatures that “eschewed traditional, objective criminal standards and retributive
notions of justice.” Id. at ¶ 66. The overriding purposes for juvenile dispositions
“are to provide for the care, protection, and mental and physical development of
children subject to [R.C. Chapter 2152], protect the public interest and safety, hold
the offender accountable for the offender’s actions, restore the victim, and
rehabilitate the offender.” R.C. 2152.01(A). In contrast, the purposes of felony
sentencing “are to protect the public from future crime by the offender and others
and to punish the offender.” R.C. 2929.11(A). In summary, juvenile adjudication
differs from criminal sentencing—one is civil and rehabilitative, the other is
criminal and punitive.
       {¶ 15} Although juvenile-court proceedings are civil in nature, In re
Anderson, 92 Ohio St.3d 63, 65, 748 N.E.2d 67 (2001), the state’s role as parens
patriae in juvenile court has become clouded as increased penalties restrict the


                                          7
                             SUPREME COURT OF OHIO




personal liberty of juveniles, In re C.S. at ¶ 66-70; State v. D.H., 120 Ohio St.3d
540, 2009-Ohio-9, 901 N.E.2d 209, ¶ 40. As a result, we have held that “numerous
constitutional safeguards normally reserved for criminal prosecutions are equally
applicable to juvenile delinquency proceedings.” State v. Walls, 96 Ohio St.3d 437,
2002-Ohio-5059, 775 N.E.2d 829, ¶ 26. Those constitutional safeguards are rooted
in the Due Process Clauses of Article I, Section 16 of the Ohio Constitution and the
Fourteenth Amendment to the United States Constitution. D.H. at ¶ 44; In re C.P.,
131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729, ¶ 70.
       {¶ 16} We have recognized that juveniles have the right to counsel during
juvenile proceedings, In re C.S. at ¶ 79, and that the state may not use a prior,
uncounseled juvenile adjudication to enhance a sentence for a later violation of R.C.
4511.19, unless there is evidence of a valid waiver of counsel, State v. Bode, 144
Ohio St.3d 155, 2015-Ohio-1519, 41 N.E.3d 1156, syllabus. Juvenile proceedings
are also covered by the constitutional protections against self-incrimination and
double jeopardy. See In re D.S., 111 Ohio St.3d 361, 2006-Ohio-5851, 856 N.E.2d
921, ¶ 17; In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 26.
       {¶ 17} We have held that automatic imposition of the most serious sex-
offender classification, Tier III, on a juvenile offender who received a serious-
youthful-offender disposition undercuts the rehabilitative purpose of Ohio’s
juvenile system and violates due process. In re C.P. at ¶ 85. We recently held that
the statutory presumption of voluntariness of a recorded custodial statement is
unconstitutional as applied to juveniles. State v. Barker, ___Ohio St.3d ___, 2016-
Ohio-2708, __N.E.3d ___, ¶ 44.
       {¶ 18} Our state jurisprudence does not run afoul of the United States
Supreme Court’s. “[N]either the Fourteenth Amendment nor the Bill of Rights is
for adults alone.” In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).
The United States Supreme Court has held that juveniles are entitled to basic
constitutional protections such as the right to counsel, the right to receive notice of


                                          8
                                January Term, 2016




the charges alleged, the privilege against self-incrimination, the application of the
proof-beyond-a-reasonable-doubt standard, and the protection against double
jeopardy. Schall v. Martin, 467 U.S. 253, 263, 104 S.Ct. 2403, 81 L.Ed.2d 207
(1984). It has also held that the Eighth Amendment prohibits the imposition of the
death penalty, the imposition of life without the possibility of parole for
nonhomicide offenses, and the imposition of mandatory life-without-parole
sentences on those who committed the crimes as juveniles. Roper v. Simmons, 543
U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005); Graham v. Florida, 560 U.S. 48,
130 S.Ct. 2011, 176 L.Ed.2d 825 (2010); Miller v. Alabama, ___ U.S. ___, 132
S.Ct. 2455, 183 L.Ed.2d 407 (2012).
       {¶ 19} But even though juveniles have been afforded many constitutional
safeguards, there is still one important right that is not required in juvenile
proceedings under the federal constitution—the right to trial by jury. McKeiver v.
Pennsylvania, 403 U.S. 528, 545, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971). We have
reached this same conclusion with regard to our state constitution. In re Agler, 19
Ohio St.2d 70, 77-78, 249 N.E.2d 808 (1969). Because the very purpose of the
state juvenile code is “to avoid treatment of youngsters as criminals and insulate
them from the reputation and answerability of criminals,” we declared that there
was no need to afford the right in juvenile proceedings. Id. at 80.
       {¶ 20} Hand argues that this lack of a right to a jury trial for juveniles is the
reason why using his adjudication against him is a due-process violation. He
contends that the use of a juvenile adjudication in a later adult criminal proceeding
to require a mandatory sentence “undermines the careful balance of due-process
rights required in the juvenile justice system” and denies a key protection that
underlies Apprendi—the right to a jury trial. Although the state acknowledges that
the juvenile and adult systems are different, the state focuses on recidivism and
contends that the legislature should be allowed to factor a prior juvenile
adjudication into an adult sentence. However, there is a significant difference


                                          9
                             SUPREME COURT OF OHIO




between allowing a trial judge to consider an adjudication during adult sentencing
and requiring a mandatory prison term to be imposed because of it.
                       Apprendi and Juvenile Adjudications
        {¶ 21} In Apprendi, the United States Supreme Court determined 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.” 530 U.S. at 490, 120 S.Ct. 2348, 147 L.Ed.2d
435. The court held that the Fourteenth Amendment demanded no less of state
statutes. Id.
        {¶ 22} The United States Supreme Court expanded Apprendi’s holding and
held that facts increasing a mandatory minimum sentence must also be submitted
to a jury and found beyond a reasonable doubt. Alleyne v. United States, ___ U.S.
___, 133 S.Ct. 2151, 2162-2163, 186 L.Ed.2d 314 (2013).
        {¶ 23} Two Ohio appellate courts have addressed whether R.C.
2901.08(A)’s treatment of juvenile adjudications as adult convictions violates due
process and Apprendi. The Eighth District determined that there was no violation
because there was no indication that the defendant was not afforded the appropriate
due process in his juvenile proceeding and thus the juvenile adjudication was
sufficiently reliable to satisfy the Apprendi exception for prior convictions. State
v. Parker, 8th Dist. Cuyahoga No. 97841, 2012-Ohio-4741, ¶ 24.
        {¶ 24} The Second District in this case and in State v. Carver, 2d Dist.
Montgomery No. 25804, 2014-Ohio-3635, reached a similar result. In Carver, it
stated that because there is no constitutional right to a jury trial for juvenile
offenders, there is no denial of due process on that basis. Id. at ¶ 13.
        {¶ 25} Federal circuit courts have also considered whether nonjury juvenile
adjudications can be characterized as prior convictions. See Welch v. United States,
604 F.3d 408 (7th Cir.2010); United States v. Wright, 594 F.3d 259 (4th Cir.2010);
United States v. Crowell, 493 F.3d 744 (6th Cir.2007); United States v. Burge, 407


                                          10
                                January Term, 2016




F.3d 1183 (11th Cir.2005); United States v. Jones, 332 F.3d 688 (3d Cir.2003);
United States v. Smalley, 294 F.3d 1030 (8th Cir.2002); United States v. Tighe, 266
F.3d 1187 (9th Cir.2001). These cases involve the Armed Career Criminal Act, 18
U.S.C. 924(e), which increases the sentence for certain defendants convicted of
being a felon in possession of a firearm in violation of 18 U.S.C. 922(g). A
conviction for 18 U.S.C. 922(g) is generally punishable by a maximum prison
sentence of ten years. 18 U.S.C. 924(a)(2). However, if the convicted felon is
found to have three previous convictions for a violent felony, a minimum term of
15 years is required. 18 U.S.C. 924(e)(1). The federal act expressly defines the
term “conviction” to include “a finding that a person has committed an act of
juvenile delinquency involving a violent felony.” 18 U.S.C. 924(e)(2)(C).
       {¶ 26} The majority of the federal circuit courts that have considered the
issue have held that the lack of a right to a jury trial in juvenile proceedings does
not prevent a court from using an adjudication to enhance a sentence under 18
U.S.C. 924(e). See Welch, 604 F.3d at 426; Wright, 594 F.3d at 264; Crowell, 493
F.3d at 750; Burge, 407 F.3d at 1190; Jones, 332 F.3d at 696; Smalley, 294 F.3d at
1032. These courts reasoned that Apprendi specifically excluded prior convictions
from its general rule that sentence enhancements could not be premised on facts not
determined by a jury, because procedural safeguards—the right to a jury trial and
the right to have guilt proved beyond a reasonable doubt—buttress the prior
convictions. See Welch, 604 F.3d at 427; Wright, 594 F.3d at 264; Crowell, 493
F.3d at 750; Burge, 407 F.3d at 1190; Jones, 332 F.3d at 696; Smalley, 294 F.3d at
1032. But these courts held that juvenile adjudications have sufficient procedural
safeguards to render them reliable enough to satisfy Apprendi’s exception even
though the juvenile did not have the right to a trial by jury. See Welch, 604 F.3d at
428-429; see also Smalley, 294 F.3d at 1032-1033; Crowell, 493 F.3d at 750; Jones,
332 F.3d at 696.



                                         11
                            SUPREME COURT OF OHIO




       {¶ 27} The Ninth Circuit, however, held that nonjury juvenile adjudications
may not be considered prior convictions that satisfy the Apprendi exception. Tighe,
266 F.3d at 1191-1195. In Tighe, the Ninth Circuit quoted the following language
from Apprendi:


       “There is a vast difference between accepting the validity of a prior
       judgment of conviction entered in a proceeding in which the
       defendant had the right to a jury trial and the right to require the
       prosecutor to prove guilt beyond a reasonable doubt, and allowing
       the judge to find the required fact under a lesser standard of proof.”


Id. at 1194, quoting Apprendi, 530 U.S. at 496, 120 S.Ct. 2348, 147 L.Ed.2d 435.
       {¶ 28} The Ninth Circuit interpreted this language to require that “the ‘prior
conviction’ exception to Apprendi’s general rule must be limited to prior
convictions that were themselves obtained through proceedings that included the
right to a jury trial and proof beyond a reasonable doubt.” Id. Accordingly, the
court held that the defendant’s sentence could not stand, because he had not been
afforded the right to trial by jury in one of the prior adjudications relied upon to
enhance his sentence. Id. at 1194-1195.
       {¶ 29} The dissenter in Welch agreed with Tighe’s holding and stressed the
differences between the juvenile and adult systems:


               The constitutional protections to which juveniles have been
       held to be entitled have been designed with a different set of
       objectives in mind than just recidivist enhancement. So the mere
       fact that a juvenile had all the process he was entitled to doesn’t
       make his juvenile conviction equivalent, for purposes of recidivist
       enhancements, to adult convictions.


                                          12
                                January Term, 2016




               ***
               * * * And because the philosophy on which the juvenile
       court system was founded emphasizes protecting the “best interests
       of the child” and rehabilitating rather than punishing the child, the
       culture of the juvenile courts discourages zealous adversarial
       advocacy even though in its current form the juvenile justice system
       is much more punitive than its founders envisaged. Lawyers also
       appear to be reluctant to appeal juvenile cases and to seek
       postconviction relief; heavy caseloads, a prevalent view that appeals
       undermine the rehabilitation process, and an absence of awareness
       among juveniles of their appeal rights are the likely reasons for this
       reluctance.


Welch, 604 F.3d at 431-432 (Posner, J., dissenting).
       {¶ 30} State supreme courts also are divided on this issue. Compare State
v. Harris, 339 Or. 157, 175, 118 P.3d 236 (2005) (the Sixth Amendment requires a
juvenile adjudication that is offered as an enhancement factor to increase a criminal
sentence to either be proved to a trier of fact or be admitted by a defendant) and
State v. Brown, 879 So.2d 1276, 1289 (La.2004) (holding that a juvenile
“adjudication should not be counted as a ‘prior conviction’ for Apprendi
purposes”), with Ryle v. State, 842 N.E.2d 320, 323 (Ind.2005) (holding that
juvenile adjudications are prior convictions for purposes of the Apprendi exception
and indicating that “[t]he main concern [in Apprendi] was whether the prior
conviction’s procedural safeguards ensured a reliable result, not that there had to
be a right to a jury trial”) and State v. Hitt, 273 Kan. 224, 42 P.3d 732 (2002),
paragraph one of syllabus (“Juvenile adjudications are included within the
historical cloak of recidivism and enjoy ample procedural safeguards; therefore, the
Apprendi exception for prior convictions encompasses juvenile adjudications”).


                                         13
                             SUPREME COURT OF OHIO




       {¶ 31} We do not agree with the view adopted by the majority of courts in
other jurisdictions and find the reasoning in Tighe to be more persuasive. Under
Apprendi, a fact cannot be used to increase the penalty for a crime beyond the
prescribed statutory maximum unless it is submitted to a jury and proved beyond a
reasonable doubt or is admitted to by the defendant. Id., 530 U.S. at 490, 120 S.Ct.
2348, 147 L.Ed.2d 435. The one exception to that rule is that a prior conviction
can be used to increase the penalty without being submitted to the jury. Id. But
prior convictions are treated differently only because “unlike virtually any other
consideration used to enlarge the possible penalty for an offense, * * * a prior
conviction must itself have been established through procedures satisfying the fair
notice, reasonable doubt, and jury trial guarantees.” Jones v. United States, 526
U.S. 227, 249, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). Thus, at the heart of
Apprendi’s narrow exception is the concept that the prior conviction was the result
of a proceeding in which the defendant had the right to a jury trial and the right to
require the prosecutor to prove guilt beyond a reasonable doubt.
       {¶ 32} The significant expansion of Apprendi’s prior-conviction exception
to include juvenile adjudications is at odds with the United States Supreme Court’s
unwavering commitment to a narrow definition of a prior conviction. The proper
inquiry under Apprendi is not simply whether juvenile adjudications are deemed to
be reliable, but whether the juveniles were afforded the right to a jury. See id. at
498-499 (Scalia, J., concurring).
       {¶ 33} The right to a jury trial “is no mere procedural formality, but a
fundamental reservation of power in our constitutional structure.” Blakely v.
Washington, 542 U.S. 296, 305-306, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
“[T]he Sixth and Fourteenth Amendments guarantee a jury standing between a
defendant and the power of the State, and they guarantee a jury’s finding of any
disputed fact essential to increase the ceiling of a potential sentence.” Shepard v.
United States, 544 U.S. 13, 25, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (plurality


                                         14
                                 January Term, 2016




opinion). That is, the jury- trial right is not primarily focused on the reliability of
the jury’s conclusions drawn from the facts, but rather on preventing the state from
drawing conclusions from the facts without using a jury.
       {¶ 34} Given the United States Supreme Court’s emphatic pronouncements
on the importance of the right to a jury trial, it is logical to conclude that the court
meant to limit the prior-conviction exception to prior proceedings that satisfied the
jury-trial guarantee. Because a juvenile adjudication is not established through a
procedure that provides the right to a jury trial, it cannot be used to increase a
sentence beyond a statutory maximum or mandatory minimum.
       {¶ 35} In his amicus curiae brief, the Ohio Attorney General argues that if
treating a juvenile adjudication as a conviction under R.C. 2901.08(A) violates due
process, the remedy is to present the fact of the prior juvenile adjudication to the
jury, not to declare R.C. 2901.08(A) unconstitutional. The determination that a jury
trial is not constitutionally necessary in juvenile-court proceedings is predicated on
the juvenile system’s purpose to “ ‘combine flexible decision-making with
individualized intervention to treat and rehabilitate offenders rather than to punish
offenses.’ ” In re Anderson, 92 Ohio St.3d at 65, 748 N.E.2d 67, quoting Rossum,
Holding Juveniles Accountable: Reforming America’s “Juvenile Injustice System,”
22 Pepperdine L.Rev. 907, 912 (1995). In 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 formal proceedings to be characterized as
criminal convictions that may later enhance adult punishment.
       {¶ 36} We already have limited the use of prior convictions in other
scenarios. An uncounseled prior conviction may not be used to enhance the penalty
of a violation of R.C. 4511.19 without evidence of a valid waiver of counsel. State
v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024. The right to a
jury trial is fundamental to due process just as the right to counsel is fundamental.


                                          15
                              SUPREME COURT OF OHIO




But in juvenile proceedings, there is no right to a jury because the focus is on
rehabilitation rather than punishment. To convert an adjudication into a conviction
when the adjudication process did not provide the right to have a jury test the
elements of that offense offends due process and Apprendi and thus the state cannot
treat a prior juvenile adjudication as a prior conviction to enhance the penalty for a
subsequent conviction.
        {¶ 37} For the foregoing reasons, we hold that R.C. 2901.08(A) violates the
Due Process Clauses of Article I, Section 16 of the Ohio Constitution and the
Fourteenth Amendment to the United States Constitution because 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.
                                      Conclusion
        {¶ 38} Treating a juvenile adjudication as an adult conviction to enhance a
sentence for a later crime is 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. It is widely recognized that juveniles
are more vulnerable to outside pressures, including the pressure to admit to an
offense. Under Apprendi, using a prior conviction to enhance a sentence does not
violate the constitutional right to due process, because the prior process involved
the right to a jury trial. Juveniles, however, are not afforded the right to a jury trial.
Quite simply, a juvenile adjudication is not a conviction of a crime and should not
be treated as one.
        {¶ 39} For the foregoing reasons, the judgment of the Montgomery County
Court of Appeals is reversed, and the cause is remanded to the trial court for
resentencing.
                                                                     Judgment reversed
                                                                   and cause remanded.


                                           16
                                 January Term, 2016




       O’CONNOR, C.J., and PFEIFER and O’NEILL, JJ., concur.
       O’DONNELL, J., dissents, with an opinion joined by KENNEDY and FRENCH,
JJ.
                                _________________
       O’DONNELL, J., dissenting.
       {¶ 40} Respectfully, I dissent.
       {¶ 41} A statute authorizing the use of a prior juvenile delinquency
adjudication to enhance an adult sentence from a nonmandatory to a mandatory
term does not violate due process or run afoul of Apprendi v. New Jersey, 530 U.S.
466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The prior juvenile adjudication of
Adrian Hand as delinquent for having committed an offense that if committed by
an adult would have been aggravated robbery is res judicata as to procedure and
substance, and therefore the trial court properly relied on it to impose a mandatory
prison term pursuant to R.C. 2929.13(F) for his adult aggravated burglary,
aggravated robbery, and felonious assault convictions.
       {¶ 42} The General Assembly has denoted in R.C. 2929.13(F)(6):


               Notwithstanding divisions (A) to (E) of this section, the
       court shall impose a prison term or terms under sections 2929.02 to
       2929.06, section 2929.14, section 2929.142, or section 2971.03 of
       the Revised Code and * * * shall not reduce the term or terms
       pursuant to section 2929.20, section 2967.19, section 2967.193, or
       any other provision of Chapter 2967. or Chapter 5120. of the
       Revised Code for any of the following offenses:
               ***
               (6) Any offense that is a first or second degree felony and
       that is not set forth in division (F)(1), (2), (3), or (4) of this section,
       if the offender previously was convicted of or pleaded guilty to


                                           17
                              SUPREME COURT OF OHIO




       aggravated murder, murder, any first or second degree felony, or an
       offense under an existing or former law of this state, another state,
       or the United States that is or was substantially equivalent to one of
       those offenses.


       {¶ 43} Because juvenile offenders are not convicted of offenses by juvenile
courts but rather are adjudicated as delinquent, some confusion exists as to whether
a juvenile adjudication should be used to enhance an adult criminal sentence
imposed by a sentencing judge. That confusion however, is addressed by the
legislature in R.C. 2901.08(A), which provides:


                 If a person is alleged to have committed an offense and if the
       person previously has been adjudicated a delinquent child or
       juvenile traffic offender for a violation of a law or ordinance, * * *
       the 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 upon the person relative to the
       conviction or guilty plea.


(Emphasis added.)
       {¶ 44} The plain language of this statute is unambiguous in my view and
resolves any question that a prior juvenile delinquency adjudication is a prior
conviction for purposes of imposing a mandatory prison term under R.C.
2929.13(F)(6).
       {¶ 45} In Apprendi, the United States Supreme Court held that “Other than
the fact of a prior conviction, any fact that increases the penalty for a crime


                                           18
                                January Term, 2016




beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348, 147 L.Ed.2d 435.
(Emphasis added.)
       {¶ 46} A majority of federal and state court decisions agree and have held
that a juvenile delinquency adjudication can be used to enhance a sentence under
18 U.S.C. 924(e), the Armed Career Criminal Act (“ACCA”), even though there is
no right to a jury trial in juvenile proceedings. See United States v. Jones, 332 F.3d
688, 696 (3d Cir.2003) (“A prior nonjury juvenile adjudication that was afforded
all constitutionally-required procedural safeguards can properly be characterized as
a prior conviction for Apprendi purposes”); United States v. Wright, 594 F.3d 259,
264 (4th Cir.2010) (“As the ACCA expressly provides for qualifying juvenile
adjudications to be used as predicate offenses and the Constitution in no way
forbids it, the district court was correct not to discount the fact that Wright burgled
firearms on three separate occasions during his delinquent youth. The fact that
juries are not constitutionally required in juvenile adjudications does nothing to
impeach this fact”); United States v. Crowell, 493 F.3d 744, 750 (6th Cir.2007)
(“We now explicitly hold that the use of procedurally sound juvenile adjudications
as ACCA predicates does not violate due process”); Welsh v. United States, 604
F.3d 408, 429 (7th Cir.2010) (“We agree with other circuits that the protections
juvenile defendants receive—notice, counsel, confrontation and proof beyond a
reasonable doubt—ensure that the proceedings are reliable. Therefore, because
juvenile adjudications are reliable, they are not subject to the Apprendi rule”);
United States v. Smalley, 294 F.3d 1030, 1033 (8th Cir.2002) (“We therefore
conclude that juvenile adjudications can rightly be characterized as ‘prior
convictions’ for Apprendi purposes”); United States v. Burge, 407 F.3d 1183, 1191
(11th Cir.2005), quoting Jones, 332 F.3d at 696 (“Accordingly, ‘[a] prior nonjury
juvenile adjudication that was afforded all constitutionally-required procedural



                                          19
                              SUPREME COURT OF OHIO




safeguards    can     properly    be    characterized     as    a   prior    conviction
for Apprendi purposes’ ”).
        {¶ 47} In Crowell, the Sixth Circuit held that “the use of procedurally sound
juvenile adjudications as ACCA predicates does not violate due process.” 493 F.3d
at 750. The court noted that Congress has the power “ ‘to treat prior convictions as
sentencing factors subject to a lesser standard of proof because the defendant
received all process that was due when convicted—for adults that includes the right
to a jury trial; for juveniles it does not.’ ” Id., quoting Jones, 332 F.3d at 695. Thus,
the court concluded that “[j]uvenile adjudications, where the defendant has the right
to notice, the right to counsel, the privilege against self-incrimination, the right to
confront and cross-examine witnesses, and the right to a finding of guilt beyond a
reasonable doubt, provide sufficient procedural safeguards to satisfy the reliability
requirement that is at the heart of Apprendi.” Id.
        {¶ 48} And the majority in today’s decision is at odds with decisions on this
issue from state supreme courts in Kansas, Indiana, Minnesota, Washington, and
California. State v. Hitt, 273 Kan. 224, 236, 42 P.3d 732 (2002) (“Juvenile
adjudications are included within the historical cloak of recidivism and enjoy ample
procedural safeguards; therefore, the Apprendi exception for prior convictions
encompasses juvenile adjudications. Juvenile adjudications need not be charged in
an indictment or proven to a jury beyond a reasonable doubt before they can be
used in calculating a defendant’s criminal history score under the Kansas
Sentencing Guidelines Act”); Ryle v. State, 842 N.E.2d 320, 321-322 (Ind.2005)
(“The federal circuits are divided over whether juvenile adjudications are an
exception to the Apprendi requirement that all facts used to enhance a sentence over
the statutory maximum must be found by a jury beyond a reasonable doubt.
Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 [147 L.Ed.2d 435]. The Third, Eighth,
and Eleventh Circuits have held that they are. * * * Our analysis of Apprendi leads
us to conclude that the Third, Eighth, and Eleventh Circuits are right”); State v.


                                           20
                                 January Term, 2016




McFee, 721 N.W.2d 607, 619 (Minn.2006) (“We hold that, in calculating a
defendant’s criminal history score, a defendant does not have a Sixth Amendment
right to a jury determination of the fact of a prior juvenile adjudication”); State v.
Weber, 159 Wash.2d 252, 149 P.3d 646, ¶ 21 (2006) (“we hold that juvenile
adjudications are convictions for the purposes of Apprendi’s prior conviction
exception. Therefore, we affirm the court of appeals’ determination that Weber’s
due process and jury trial rights are not violated by including Weber’s juvenile
adjudication in his offender score”); People v. Nguyen, 46 Cal.4th 1007, 1019, 209
P.3d 946 (2009) (“we agree with the majority view that the Fifth, Sixth, and
Fourteenth Amendments, as construed in Apprendi, do not preclude the sentence-
enhancing use, against an adult felon, of a prior valid, fair, and reliable adjudication
that the defendant, while a minor, previously engaged in felony misconduct, where
the juvenile proceeding included all the constitutional protections applicable to
such matters, even though these protections do not include the right to jury trial”).
        {¶ 49} No right to a jury trial exists in juvenile proceedings under the United
States or Ohio Constitutions. McKeiver v. Pennsylvania, 403 U.S. 528, 545, 91
S.Ct. 1976, 29 L.Ed.2d 647 (1971); In re Agler, 19 Ohio St.2d 70, 249 N.E.2d 808
(1969), paragraph two of the syllabus. However, as this court stated in State v.
Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775, N.E.2d 829, ¶ 26,


       numerous constitutional safeguards normally reserved for criminal
       prosecutions are equally applicable to juvenile delinquency
       proceedings. [In re Anderson, 92 Ohio St.3d 63] 66, 748 N.E.2d 67
       [2001], citing In re Gault, 387 U.S. 1, 31-57, 87 S.Ct. 1428, 18
       L.Ed.2d 527 [1967] (holding that various Fifth and Sixth
       Amendment protections apply to juvenile proceedings), and In re
       Winship (1970), 397 U.S. 358, 365-368, 90 S.Ct. 1068, 25 L.Ed.2d
       368 (holding that the state must prove juvenile delinquency beyond


                                          21
                             SUPREME COURT OF OHIO




        a reasonable doubt); see, also, Breed [v. Jones], 421 U.S. 519, 95
        S.Ct. 1779, 44 L.Ed.2d 346 [1975] (holding that a delinquency
        proceeding places a juvenile in jeopardy for purposes of the Double
        Jeopardy Clause); In re Melvin J. (2000), 81 Cal.App.4th 742, 759-
        760, 96 Cal.Rptr.2d 917 (relying on Gault, Winship, and Breed to
        hold that ex post facto principles apply to juvenile proceedings).


        {¶ 50} Accordingly, imposing a mandatory sentence under R.C. 2929.13(F)
based on a prior nonjury juvenile adjudication does not violate due process or run
afoul of Apprendi, and therefore, the trial court did not violate Hand’s right to due
process by imposing a mandatory term based on his prior delinquency adjudication
for an offense that would have been aggravated robbery if he had been convicted
of it as an adult.
        {¶ 51} Hand acknowledges that Ohio law and case authority from the Sixth
Circuit Court of Appeals do not support his position that using a juvenile
adjudication as a prior conviction for purposes of enhancing an adult sentence from
a nonmandatory to a mandatory term violates due process and Apprendi, and urges
that he is arguing for a change in existing law. That change, however, involves a
policy consideration involving Ohio law and is not appropriate for judicial decree,
but rather should emanate, if at all, from the policy making branch of government,
the General Assembly in the State of Ohio.
        {¶ 52} Accordingly, I respectfully dissent from the decision of the majority
in this case, and I would affirm the judgment of the court of appeals.
        KENNEDY and FRENCH, JJ., concur in the foregoing opinion.
                               _________________
        Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and
Andrew T. French, Assistant Prosecuting Attorney, for appellee.



                                         22
                               January Term, 2016




       Timothy Young, Ohio Public Defender, and Stephen A. Goldmeier,
Assistant Public Defender, for appellant.
       Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, and
Peter T. Reed, Deputy Solicitor, urging affirmance for amicus curiae, Ohio
Attorney General.
                              _________________




                                        23
