         [Cite as State v. Barfield, 2017-Ohio-8044.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                      :   APPEAL NO. C-160768
                                                        TRIAL NO. B-1602867
        Plaintiff-Appellee,                         :
                                                           O P I N I O N.
  vs.                                               :

WILLIE BARFIELD,                                    :

    Defendant-Appellant.                            :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: October 4, 2017


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

Raymond T. Faller, Hamilton County Public Defender, Christine Y. Jones, Director
Public Defender Appellate Division, and Joshua A. Thompson, Assistant Public
Defender, for Defendant-Appellant.
                    OHIO FIRST DISTRICT COURT OF APPEALS



M ILLER , Judge.

       {¶1}   Willie Barfield asks this court to reverse our recent decision in State v.

Carnes, 2016-Ohio-8019, 75 N.E.3d 774 (1st Dist.), appeal accepted, 2017-Ohio-

7567, 2017 WL 4037672, arguing that we misinterpreted State v. Hand, 149 Ohio

St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448, which he claims requires reversal of the

trial court’s judgment denying his post-sentence motion to withdraw his guilty plea.

His argument is not well taken. Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915,

63 L.Ed.2d 198 (1980), and its progeny expressly permit something less than a valid

criminal conviction to be an underlying disability in a weapon-possession offense.

       {¶2}   Barfield pleaded guilty to having a weapon while under a disability, in

violation of R.C. 2923.13(A)(2). He admitted to two disabilities—juvenile

adjudications for the commission of offenses that would have constituted robbery

and aggravated robbery had Barfield been an adult.          The trial court accepted

Barfield’s plea, and imposed a 12-month sentence.

       {¶3}   Barfield later moved to withdraw his guilty plea, arguing that Hand,

which was decided six days before his plea, barred the use of his juvenile

adjudications to establish the disability element of his conviction.           Barfield

contended that he was unaware of Hand at the time of his plea, and therefore his

plea had not been voluntarily made. His motion was overuled.

       {¶4}   In his sole assignment of error, Barfield contends that the trial court

incorrectly concluded that Hand did not apply. Under Crim.R. 32.1, a defendant

seeking to withdraw a guilty plea post-sentence must demonstrate that his motion

should be granted to correct a “manifest injustice.” State v. Smith 49 Ohio St.2d 261,

361 N.E.2d 1324 (1977), paragraph one of the syllabus. We review the trial court’s




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judgment for an abuse of discretion. Id. at paragraph two of the syllabus. Obviously,

a manifest justice would not result if Barfield is incorrect regarding Hand.

                   Carnes is Consistent with Hand and Apprendi

       {¶5}    In relevant part, this court held in Carnes that Hand did not bar the

use of a prior juvenile adjudication to prove the disability element of a weapon-

possession charge under R.C. 2923.13. Carnes, 2016-Ohio-8019, 75 N.E.3d 774, at ¶

15. We more fully explain our holding here. As discussed below, Hand does not

control this decision. Lewis does.

       {¶6}    Hand held that R.C. 2901.08(A) violated the due process clauses of

the Ohio and United States Constitutions because it was “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. Hand, 149 Ohio

St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448, at paragraph one of the syllabus. The

Court also held that using a juvenile adjudication to increase a sentence beyond a

statutory maximum or mandatory minimum violated due process under Apprendi v.

New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Id. at paragraph

two of the syllabus. In its Apprendi analysis, Hand focused on the fact that there is

no right to a jury trial in the juvenile justice system, and cited United States v. Tighe,

266 F.3d 1187 (9th Cir.2001) for the conclusion that the “prior conviction” exception

to 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.

       {¶7}    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.



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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. See State v. McComb, 2d Dist. Montgomery

No. 26884, 2017-Ohio-4010, ¶ 26 (holding that “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.”); State v. Hudson, 7th Dist. Mahoning No. 15 MA 0134, 2017-Ohio-645,

¶ 51.

        {¶8}   The key to our analysis here is that only the existence of a disability—

and not its reliability—is at issue in the statute. See Carnes, 2016-Ohio-8019, 75

N.E.3d 774, at ¶ 13, citing Lewis, 445 U.S. at 66, 100 S.Ct. 915, 63 L.Ed.2d 198.

Lewis, unlike Apprendi and Hand, speaks to disabilities that can be an element of a

weapon-possession crime. It controls the issue presented in this case.

        {¶9}   In Lewis, the United States Supreme Court held that an invalid felony

conviction could be a disability to prohibit the possession of a firearm without

running afoul of the United States Constitution. Lewis at 66-67. The Court reasoned

that “the federal gun laws * * * focus not on reliability, but on the mere fact of

conviction, or even indictment, in order to keep firearms away from potentially

dangerous persons.” Id. at 67. Federal circuit courts have applied Lewis to hold that

a constitutionally-infirm felony conviction can be used to impose a firearm disability

post-Apprendi. See United States v. Marks, 379 F.3d 1114, 1117 (9th Cir.2004)



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                     OHIO FIRST DISTRICT COURT OF APPEALS



(collecting the cases). Significantly, in Marks the Ninth Circuit applied Lewis after it

had decided Tighe. See also State v. Boyer, 2d Dist. Clark No. 2016-CA-63, 2017-

Ohio-4199, ¶ 13 (holding that, for purposes of establishing a disability “whether a

defendant actually committed an offense as a juvenile is rendered immaterial.”).

Lewis and its progeny expressly permit something less than a felony conviction to

form the basis of a disability in a weapon-possession offense. We follow Lewis, and

decline to expand Hand.

       {¶10}   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 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.

       Ohio’s “Due Course” Clause does not Afford Protection beyond
                     the Federal “Due Process” Clause

       {¶11}   Barfield next claims that we should not have relied on Lewis in

Carnes because “Lewis was a case about federal law analyzed under the federal

constitution,” and Hand “is about an Ohio law analyzed under the Ohio

Constitution.” Barfield asserts that because the Ohio Constitution can afford more



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protection than the United States Constitution, Hand should be read broadly to

include banning the use of a juvenile adjudication as the disability element in R.C.

2923.13.

       {¶12}   Hand was decided under the “due course” and “due process” clauses

of the Ohio and United States Constitutions, respectively. Hand, 149 Ohio St.3d 94,

2016-Ohio-5504, 73 N.E.3d 448, at paragraph one of the syllabus and ¶ 11. Ohio’s

“due course of law” provision does not provide greater protections than the “due

process” clause in the Fourteenth Amendment to the United States Constitution. Id.

at ¶ 11, citing Direct Plumbing Supply Co. v. Dayton, 138 Ohio St. 540, 544, 38

N.E.2d 70 (1941). Barfield’s argument therefore has no merit.

       {¶13}   Finally, Barfield claims that Lewis is inapplicable because the

disability in this case was a juvenile adjudication and Lewis involved an adult-

conviction disability. Lewis held that the reliability of a disability is irrelevant. This

holding is equally applicable to adult convictions as well as juvenile adjudications.

                   Carnes Remains the Law of the First District

       {¶14}   In sum, Carnes is correct. Hand is limited to banning the use of a

juvenile adjudication to enhance the degree of or the sentence for a later offense.

Applying Hand to hold as Barfield contends would be contrary to Lewis.

       {¶15}   Hand does not apply in this case, and Barfield has failed to

demonstrate that the trial court abused its discretion in denying his post-sentence

motion to withdraw his guilty plea. We therefore overrule his sole assignment of

error, and affirm the trial court’s judgment.

                                                                    Judgment affirmed.
M YERS , J., concurs.
Z AYAS , P.J., dissents.




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                     OHIO FIRST DISTRICT COURT OF APPEALS




Z AYAS , P.J., dissenting.

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

of a prior juvenile adjudication as an element of an adult offense. 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.”

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

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

judgment, and remand with instructions to grant Barfield’s motion to withdraw his

guilty plea and dismiss the indictment.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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