[Cite as State vs. Fortson, 2018-Ohio-2388.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :     JUDGES:
                                               :     Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                   :     Hon. Patricia A. Delaney, J.
                                               :     Hon. Craig R. Baldwin, J.
-vs-                                           :
                                               :
CHARLES LEWIS FORTSON                          :     Case No. 2017CA00141
                                               :
        Defendant - Appellant                  :     OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Stark County Court
                                                     of Common Pleas, Case No. 2017-
                                                     CR-0278




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    June 18, 2018




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOHN D. FERRERO                                      VICTORIA BADER
Prosecuting Attorney                                 Assistant State Public Defender
                                                     250 East Broad Street, Suite 1400
By: RONALD MARK CALDWELL                             Columbus, Ohio 43215
Assistant Prosecuting Attorney
110 Central Plaza South, Suite 510
Canton, Ohio 44702
Stark County, Case No. 2017CA00141                                                     2

Baldwin, J.


       {¶1}   Appellant, Charles Fortson, appeals his conviction for having weapons


under a disability in violation of 2923.13(A)(2), a felony of the third degree. Appellant was


a juvenile at the time of the filing of the complaint, but his case was transferred to the


Stark County Court of Common Pleas, where he admitted to the indictment and was


sentenced on this charge and several other charges. Appellee is the State of Ohio.



                             FACTS AND PROCEDURAL POSTURE


       {¶2}   The facts leading to the charges filed against appellant are unnecessary for


the resolution of the appeal, so they are omitted.



       {¶3}   The appellee was a juvenile just eleven days short of his eighteenth birthday


when he allegedly committed several felony offenses including the only offense relevant


to his appeal, one count of having a weapon under disability in violation of R.C.


2923.13(A)(2). The State filed complaints with the Stark County Court of Common Pleas,


Family Division, charging appellant with multiple offenses on September 23, 2016 and,


concurrent with the filing of the complaints, the State filed a motion to transfer jurisdiction
Stark County, Case No. 2017CA00141                                                   3


to the Criminal Division of the Stark County Court of Common Pleas pursuant to Juv.R.


30, R.C. 2152.10 and 2152.12. After a hearing on January 26, 2017 and after a thorough


evaluation of the law and the facts, the family court issued extensive findings of fact and


conclusions of law and determined that there was probable cause to believe that appellant


committed the alleged offenses and that he was not amenable to rehabilitation in the


juvenile system. The court transferred his case to the criminal division per entry on


February 14, 2017. Appellant did not object or appeal the family court’s findings or orders.



       {¶4}   Appellee was indicted on March 8, 2017 for one count of possessing a


weapon under disability in violation of R.C. 2923.13(A)(2) and several other felony


offenses, including three counts of rape, one count of kidnapping, one count of


aggravated robbery, one count of improperly handling firearms in a motor vehicle, one


count of receiving stolen property, one count of carrying a concealed weapon, one count


of trafficking in a controlled substance and one count of possession of cocaine. He initially


plead not guilty, but, on April 10, 2017, appellant changed his plea to guilty and was


sentenced to 36 months on the violation of R.C. 2923.13(A)(2). He was sentenced on all


other pending charges for a total time of incarceration of 19 years.
Stark County, Case No. 2017CA00141                                                 4


      {¶5}   Appellant filed a notice of appeal and a motion for leave to file a delayed


appeal on July 28, 2017. That motion was granted and appellant filed a brief with a single


assignment of error:



      {¶6}   THE STARK COUNTY COMMON PLEAS COURT ERRED WHEN IT


CONVICTED CHARLES FORTSON OF WEAPONS UNDER DISABILITY WHERE THE


DISABILITY AROSE FROM A JUVENILE ADJUDICATION. State v. Hand, 149 Ohio


St.3d 94, 2016-0hio-5504, 73 N.E.3d 448; State v. Bode, 144 Ohio St.3d 155, 2015-0hio-


1519, 41 N.E.3d 1156; FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION;


ARTICLE I, SECTION 16, OHIO CONSTITUTION.



      {¶7}   We note that appellant has appealed only his conviction for having a


weapon under a disability and no other portion of his conviction. We also note that this


issue was not argued before the trial court and, therefore, must be reviewed under a “plain


error” standard.
Stark County, Case No. 2017CA00141                                                      5


                                 STANDARD OF REVIEW



       {¶8}   Error not raised in the trial court must be plain error in order to reverse. State


v. Johnson, 5th Dist. Richland No. 98–CA–42, 1998 WL 818026, citing State v. Long, 53


Ohio St.2d 91, 372 N.E.2d 804 (1978). Notice of plain error is to be taken with utmost


caution, under exceptional circumstances, and only to prevent a manifest miscarriage of


justice. Id. Plain error does not exist unless but for the error, the outcome of the trial would


clearly have been otherwise. State v. Nicholas, 66 Ohio St.3d 431, 613 N.E.2d 225


(1993).


       {¶9}   If the appellant is correct and the trial court erred, the charge of having a


weapon while under a disability would not have been considered, so we will review the


appellant’s argument as an assertion of plain error.


       {¶10} Appellant relies on the Supreme Court of Ohio’s holdings in State v. Hand,


149 Ohio St.3d 94, 2016-0hio-5504, 73 N.E.3d 448, and State v. Bode, 144 Ohio St.3d


155, 2015-0hio-1519, 41 N.E.3d 1156 as well as a policy argument regarding how


offenders are treated in juvenile court. It is the obligation of the Legislature and not this


court to adopt legislation based upon policy decisions, so the policy arguments presented
Stark County, Case No. 2017CA00141                                                   6


by appellant, though they may be well reasoned, are unpersuasive in this context. More


importantly, the family court determined that appellant is not amenable to rehabilitation in


the juvenile system and should now be treated as an adult, so consideration of appellant’s


age has, at least in part, been addressed by the family court.


       {¶11} Further, the facts in this case distinguish it from the precedent cited by


appellant. In Bode and Hand the State charged appellants with offenses committed when


they were adults. Those appellants objected to the use of a prior juvenile adjudication to


enhance the penalty for the offense committed as an adult. In this case appellant was


initially charged with several offenses, including having a weapon while under a disability,


as a juvenile. Appellant is currently subject to the jurisdiction of the Criminal Division of


the Stark County Court of Common Pleas for those charges only because the State filed


a motion to transfer the matter and the family court, after a thorough analysis, concluded


that a transfer was warranted. This case does not, as suggested by appellant, allow “a


juvenile adjudication to rear its head years later in an unrelated adult proceeding.”


       {¶12} Appellant is effectively arguing that the charge of possessing a weapon


under a disability filed against a juvenile under RC 2923.13(A)(2) cannot survive the
Stark County, Case No. 2017CA00141                                                 7


transfer from the juvenile system to the adult system. The Supreme Court of Ohio did not


consider that issue in Hand or Bode because those appellants committed offenses as


adults that were impacted by prior acts as a juvenile. The appellant herein committed


offenses as a juvenile for which was sentenced as an adult, so the appellant’s reliance


on the holdings of Hand and Bode is misplaced. For that reason, we conclude that the


trial court did not err.


       {¶13} If, arguendo, appellant’s argument remains valid despite the fact that


appellant was initially charged as a juvenile and we were to consider the holdings in Hand


and Bode, appellant does not provide any reason for us to deviate from our position in


State v. Jones, 5th Dist. No. 2017CA00064, 2017-Ohio-9119, and we decline to do so.


We have determined that the juvenile adjudication is the disability. It does not impact the


degree of or sentence for the offense. Thus the due process concerns present in Hand


are absent here. Jones, Id., at ¶ 14.


       {¶14} The holdings of the Supreme Court of Ohio in Hand and Bode addressed


facts that involved charges against an adult defendant. The Court ruled that a juvenile


adjudication could not be used to enhance the degree of or the sentence for a subsequent
Stark County, Case No. 2017CA00141                                                    8

offense committed as an adult. Hand, syllabus, paragraph 1; Bode, syllabus. This court


and other districts have concluded that the rule in Hand and Bode does not apply to the


facts of appellant’s case.


       {¶15} We addressed the use of a juvenile adjudication to support an adult


conviction for having a weapon under a disability in Jones, supra, and we noted that:


       “***the First, Second, Seventh, Eighth, and Tenth Districts have rejected the


       argument Jones advances here. State v. Carnes, First Dist., 2016-Ohio-


       8019, 75 N.E.3d 774, appeal allowed, State v. St. Jules, 2nd Dist.


       Montgomery App. No. 27405, 2017–Ohio–794, 2017 WL 4340684, State v.


       Hudson, 7th Dist., 2017-Ohio-645, 85 N.E.3d 371, State v. Stewart, 8th Dist.


       Cuyahoga App. No. 105154, 2017-Ohio-2993, 2017 WL 2291643, State v.


       Brown, 10th Dist. Franklin App. No. 16AP-753, 2017-Ohio-7134, –––


       N.E.3d ––––. 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.”



Jones, supra at ¶ 18
Stark County, Case No. 2017CA00141                                                   9

       {¶16} The Second District Court of Appeals recently affirmed its conclusion in St.


Jules, supra in the case of State v. Gause, 2nd Dist. Montgomery No. 27527, 2018-Ohio-


313, ¶11:


       Therefore, we once again hold that the use of a juvenile adjudication to


       support a charge of having weapons while under disability does not violate


       a defendant's constitutional right to due process.


       {¶17} Though the decision of the Supreme Court of Ohio in Bode, supra, was not


addressed in our decision in Jones, that holding is analogous to the decision in Hand.


The Supreme Court defined the issue as “whether the state may use an uncounseled


juvenile adjudication to enhance penalties for an adult conviction”. Bode at ¶ 1. As in


Hand, the focus was on enhancement of penalties and not whether the juvenile


adjudication can serve as an element of an offense committed when appellant is an adult.


The appellant argues that we should extend the rational of Hand and Bode to prevent the


use of juvenile adjudications as an element of a charge of possessing weapons under a


disability. We decline appellant’s invitation to overrule our decision in Jones and to ignore


the decision of our colleagues in other districts.
Stark County, Case No. 2017CA00141                                             10


      {¶18} For the forgoing reasons, the decision of the Stark County Court of Common

Pleas is affirmed. Costs assessed to appellant.

By: Baldwin, J.

Hoffman, P.J. and

Delaney, J. concur.
