[Cite as State v. Parker, 2017-Ohio-7484.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105472



                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.


                                    COREY J. PARKER
                                                      DEFENDANT-APPELLANT




                                JUDGMENT:
                      REVERSED IN PART AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-11-549438-A

        BEFORE:          Blackmon, J., E.A. Gallagher, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                     September 7, 2017
ATTORNEYS FOR APPELLANT

Mark Stanton
Cuyahoga County Public Defender

By: Erika B. Cunliffe
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Diane Smilanick
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

      {¶1} This cause came to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.R. 11. Appellant Corey Parker (“Parker”) challenges the trial

court’s denial of his motion to vacate his conviction and mandatory eight-year sentence

for aggravated robbery, with a notice of prior conviction stemming from a juvenile

delinquency adjudication, and having a weapon while under disability. He assigns the

following error for our review:

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

      2016-Ohio-5504, 73 N.E.3d 448], which declared R.C. 2901.08

      unconstitutional under both the state and federal constitutions [because it

      treats juvenile adjudications as penalty-enhancing convictions] applies

      retroactively to invalidate sentences previously enhanced under that

      unconstitutional provision.

      {¶2} Having reviewed the record and pertinent law, we reverse in part and

remand for further proceedings consistent with this opinion.

      {¶3} The facts of this matter were set forth in Parker’s direct appeal, as follows:

      On April 16, 2011, Parker drove two codefendants, Emmanuel Scott and
      Antwon Carrington, to a pet store located on Cleveland’s east side. Scott
      and Carrington entered the store to commit a robbery while Parker remained
      in the car. There was an exchange of gunfire in the store, and Scott
      received a nonfatal gunshot wound. He returned to the car, and Parker
      drove him to the emergency room at Cleveland Clinic. After the police
      identified Parker from video footage at the clinic, they arrested Parker,
      Scott, and Carrington.
       Parker was indicted on May 12, 2011, along with Scott and Carrington, and
       charged with Count 1, aggravated robbery; Count 2, aggravated burglary;
       Counts 3 through 5, kidnapping; Counts 6 through 8, felonious assault;
       Count 9, carrying a concealed weapon; Count 10, having weapons while
       under disability; and Count 11, theft. Counts 1 through 8 included
       one-year and three-year firearm specifications. Counts 1 through 8 also
       included a notice of prior conviction specification under R.C.
       2929.13(F)(6), [stemming from] a juvenile delinquency adjudication in
       juvenile court for felonious assault, and a repeat violent offender
       specification under R.C. 2941.149(A).

       Parker pleaded guilty on September 21, 2011, to aggravated robbery, a
       first-degree felony, and having weapons while under disability, a
       third-degree felony. In exchange for Parker’s agreement to cooperate with
       the police and testify against Scott and Carrington, the state dismissed all
       other charges and specifications excluding the one reflecting notice of prior
       conviction. The trial court sentenced Parker on November 30, 2011, to
       eight years in prison [mandatory, due to the juvenile delinquency
       adjudication in the notice of prior conviction] with five years of postrelease
       control.

See State v. Parker, 8th Dist. Cuyahoga No. 97841, 2012-Ohio-4741, ¶ 3-5 (“Parker I”).

Scott pled guilty to aggravated robbery with a firearm specification and felonious assault,

and was sentenced to a total of eight years of imprisonment. Apart from the three-year

term for the firearm specification, Scott was not sentenced to a mandatory term.

Carrington pled guilty to felonious assault and was sentenced to nonmandatory eight-year

term. See State v. Carrington, Cuyahoga C.P. No. CR-11-549438 (Nov. 30, 2011);

State v. Scott, Cuyahoga C.P. No. CR-11-549438 (Nov. 30, 2011).              According to

appellant’s counsel, both Scott and Carrington were granted judicial release prior to the

completion of their eight-year terms.

       {¶4} On direct appeal, Parker challenged his sentence and also asserted that R.C.

2901.08 is unconstitutional because it permits juvenile delinquency adjudications that are
not determined by a jury to be included as prior convictions for purposes of imposing

mandatory prison terms under R.C. 2929.13(F)(6).

      {¶5} This court rejected Parker’s challenge to R.C. 2901.08, and affirmed.

Applying the reasoning set forth in the majority of jurisdictions deciding the issue, this

court held that prior juvenile delinquency adjudications fell within the “prior conviction

exception” set forth in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147

L.Ed.2d 435 (2000), and that there were “sufficient procedural safeguards to satisfy the

reliability requirement that is at the heart of Apprendi.” Id. at ¶ 24. The Ohio Supreme

Court declined Parker’s motion for discretionary appeal, with three justices dissenting.

See State v. Parker, 134 Ohio St.3d 1471, 2013-Ohio-553, 983 N.E.2d 370.

      {¶6} On October 31, 2016, Parker filed a motion to vacate his conviction and

sentence, arguing that his constitutional rights were violated when the juvenile

delinquency adjudications served as the basis of both the notice of prior conviction

specifications, and the disability element of the weapons while under disability

conviction. The trial court denied the motion. Parker now appeals.

                                 Postconviction Relief

      {¶7} “Where a criminal defendant, subsequent to his or her direct appeal, files a

motion seeking vacation or correction of his or her sentence on the basis that his or her

constitutional rights have been violated, such a motion is a petition for postconviction

relief as defined in R.C. 2953.21.”      State v. Reynolds, 79 Ohio St.3d 158, 160,

1997-Ohio-304, 679 N.E.2d 1131.
       {¶8} Under R.C. 2953.23(A), a trial court may entertain a successive petition if

the petitioner initially demonstrates either (1) he was unavoidably prevented from

discovering the facts necessary for the claim for relief, or (2) the United States Supreme

Court recognized a new federal or state right that applies retroactively to persons in the

petitioner’s situation.    R.C. 2953.23(A)(1)(a).        Next, the petitioner must also

demonstrate that but for the constitutional error at trial, no reasonable finder of fact would

have found him guilty. R.C. 2953.23(A)(1)(b).

       {¶9} A trial court’s decision granting or denying a postconviction petition filed

pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion. State v.

Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58.

       {¶10} Here, Parker’s motion to correct or vacate sentence, despite its caption,

meets the definition of a motion for postconviction relief under R.C. 2953.21(A)(1),

because it (1) was filed subsequent to Parker’s direct appeal, (2) claimed a denial of

constitutional rights, (3) sought to render the judgment void, and (4) asked for vacation of

the judgment and sentence. Reynolds, 79 Ohio St.3d at 160-161; State v. Bridges, 8th

Dist. Cuyahoga Nos. 103634 and 104506, 2016-Ohio-7298, ¶ 31.

       {¶11} In this matter, Parker asserts that the Ohio Supreme Court’s decision in

Hand operates retroactively and entitles him to vacate his weapons while under disability

conviction, the notice of prior conviction, and his sentence.

                                      Hand Decision
      {¶12} In 2015, the Ohio Supreme Court agreed to hear the same Apprendi-based

challenge to R.C. 2901.08 raised by Parker in 2012 when it accepted a discretionary

appeal from the decision in State v. Hand, 2d Dist. Montgomery No. 25840,

2014-Ohio-3838.

      {¶13} Thereafter, on August 25, 2016, the Ohio Supreme Court held that it is a

violation of due process to treat a juvenile delinquency adjudication as the equivalent of

an adult conviction for purposes of enhancing a penalty for a later crime, since the

delinquency adjudication is not established through a procedure that provides the right to

a jury trial. Hand, at paragraphs one and two of the syllabus.

      {¶14}     In reaching this decision, the Ohio Supreme Court noted that under

Apprendi, “[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.” Id. at ¶ 23.        The court also noted that 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. Id. at ¶ 24, citing Alleyne v. United States, 570 U.S. _____, 133 S.Ct.

2151, 186 L.Ed.2d 314 (2013), and Apprendi, 530 U.S. at 490.

      {¶15} Turning next to the issue of whether a juvenile adjudication is “the fact of

a prior conviction” within the exception to Apprendi, the Hand court discussed this

court’s reasoning in Parker I, 2012-Ohio-4741, but declined to follow Parker I.        See

Hand at ¶ 23.   Accordingly, Parker I has been overruled as to this issue.
       {¶16} The Hand court likewise rejected the reasoning of the Second District, six

federal circuit courts, and various other state courts, and instead adopted the minority

position of the Ninth Circuit Court of Appeals in United States v. Tighe, 266 F.3d 1187

(9th Cir.2001), holding 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. at ¶ 24, quoting Tighe, at 266 F.3d at 1194. The Ohio Supreme Court

explained:

       “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.”

Id. at ¶ 29, quoting Welch v. United States, 604 F.3d 408, 431-432 (Posner, J., dissenting).



       {¶17} The plain language of Hand demonstrates that the court did not accept this

court’s analysis in Parker I, and that Parker I was overruled, albeit sub silentio, insofar as

it pertains to notices of prior convictions from juvenile delinquency adjudications.

Therefore, Parker has established, under R.C. 2953.21(A)(1) that while he preserved the

error throughout the appellate process, he was unavoidably prevented from presenting this

claim for relief until 2016.

       {¶18} Additionally, apart from the fact that Hand impliedly overruled Parker I, we

conclude that Hand announced a new constitutional rule that applies retroactively to cases
on collateral review.   Under the analysis set forth in Teague v. Lane, 489 U. S. 288, 109

S.Ct. 1060, 103 L.Ed.2d 334 (1989), a new constitutional rule of criminal procedure

applies to criminal cases still pending on direct appeal, but generally does not apply to a

conviction that was final when the new rule was announced.      Id. at 295.   However, two

categories of decisions fall outside this general bar on retroactivity:

       First, “[n]ew substantive rules generally apply retroactively.” Schriro v.

       Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) * *

       *.   Second, new “‘watershed rules of criminal procedure,’” which are

       procedural rules “implicating the fundamental fairness and accuracy of the

       criminal proceeding,” will also have retroactive effect. Saffle v. Parks,

       494 U.S. 484, 495, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990) [quoting

       Teague at 311-313].

Welch v. United States, 578 U.S. ___, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016).

       {¶19}      The court recently explained the distinction between retroactive

substantive rules and nonretroactive procedural rules as follows:

       Substantive rules, then, set forth categorical constitutional guarantees that
       place certain criminal laws and punishments altogether beyond the State’s
       power to impose. It follows that when a State enforces a proscription or
       penalty barred by the Constitution, the resulting conviction or sentence is,
       by definition, unlawful. Procedural rules, in contrast, are designed to
       enhance the accuracy of a conviction or sentence by regulating “the manner
       of determining the defendant’s culpability.”

Montgomery v. Louisiana, 577 U.S.___, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), quoting

Schriro, 542 U.S. at 353.
      {¶20} In determining whether a rule is substantive or procedural, the Welch court

explained:

      “A rule is substantive rather than procedural if it alters the range of conduct
      or the class of persons that the law punishes [including] decisions that
      narrow the scope of a criminal statute by interpreting its terms, as well as
      constitutional determinations that place particular conduct or persons
      covered by the statute beyond the State’s power to punish.”

578 U.S. at ¶ 8, quoting Schriro, 542 U.S. at 353.

      {¶21} In other words, substantive rules “either (a) prohibit criminal punishment for

certain types of primary conduct, or (b) forbid the imposition of certain categories of

punishment for particular classes of defendants.” O’Dell v. Netherland, 521 U.S. 151,

157, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997). Conversely, procedural rules “regulate

only the manner of determining the defendant’s culpability.” Schriro, 542 U.S. at 353.

      {¶22}    Applying the foregoing, we conclude that the rule announced in Hand is a

new constitutional “substantive rule,” and that it applies retroactively. In Hand, the

court altered R.C. 2929.13(F)(6)’s range of persons and conduct subject to a mandatory

term or imprisonment due to a prior conviction, by excluding juvenile offenses from the

definition of prior convictions set forth in R.C. 2901.08. Therefore, Hand limited the

reach of the underlying statute by altering “the class of persons” who may be subject to

mandatory prison terms to exclude juvenile adjudications as prior convictions. The

court did not merely issue a procedural decision, because Hand had nothing to do with the

range of permissible methods a court might use in determining if the offender is to be

sentenced to mandatory imprisonment and was not issued to enhance the accuracy of a
conviction or sentence by regulating “the manner of determining the defendant’s

culpability.” Accordingly, Hand issued a new constitutional substantive rule that is

retroactively applicable to cases on collateral review, such as the instant matter.

          {¶23} We recognize that in State v. Smith, 2d Dist. Montgomery No. 27294,

2017-Ohio-2684, the court held that Hand applies only to cases that are pending on the

announcement date, and does not apply retroactively to a conviction that has become

final. Id. at ¶ 11, citing Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-6592, 819 N.E.2d

687.      However, Smith may be distinguished from this matter in that Smith also

committed numerous adult prior offenses that supported the imposition of mandatory

imprisonment under R.C. 2929.13(F)(6), whereas in this case, Parker’s sole juvenile

adjudication was the basis for imposing the mandatory term of imprisonment.

          {¶24}   Moreover, in State v. Moore, 149 Ohio St.3d 557, 2016-Ohio-8288, 76

N.E.3d 1127, the Ohio Supreme Court recently held that a juvenile’s 141 year sentence

was the “functional equivalent of life without parole,” so the court held that the rule

announced in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010),

prohibiting the imposition of sentences of life imprisonment without parole on juvenile

nonhomicide offenders, announced a substantive rule that must be given retroactive

effect.    Moore at ¶ 97-99.

          {¶25} Similarly, after the United States Supreme Court issued its decision in Miller

v. Alabama, 567 U.S. 420, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012),“that mandatory life

without parole for those under the age of 18 at the time of their crimes violates the Eighth
Amendment’s prohibition on ‘cruel and unusual punishments,’” the court also held that

this rule applies retroactively to cases on collateral review.       See Montgomery, 577

U.S.___, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). The court stated:

       Because Miller determined that sentencing a child to life without parole is
       excessive for all but the rare juvenile offender * * *, it rendered life without
       parole an unconstitutional penalty for “a class of defendants because of
       their status” — that is, juvenile offenders whose crimes reflect the transient
       immaturity of youth. * * * As a result, Miller announced a substantive
       rule of constitutional law. Like other substantive rules, Miller is
       retroactive[.]

Id. at 136 S.Ct. 718.

       {¶26}    Likewise, in Welch, 578 U.S. ___, 136 S.Ct. 1257, the court gave

retroactive application to Johnson v. United States, 576 U.S. ___, 135 S.Ct. 2551, 192

L.Ed.2d 569 (2015), a decision that, like Hand, found that a statute imposing an enhanced

sentence was unconstitutional. In Johnson, the Supreme Court held that the “residual

clause” portion of the definition of sentencing enhancing “violent felonies” set forth in

the   Armed    Career Criminal Act (“ACCA”), 18 U.S.C. 924(e)(2)(B)(ii), is

unconstitutionally vague. The court considered Welch’s petition for habeas corpus in

connection with his 2010 conviction for being a felon in possession of a firearm that was

enhanced under the “residual clause” from a 1996 strong-arm robbery.        The Welch court

determined that in striking the “residual clause,” Johnson court did not simply issue a

procedural decision, because “Johnson had nothing to do with the range of permissible

methods a court might use [during sentencing.]” 136 S.Ct. at 1265 (slip op., at 9).
Instead, Johnson “affected the reach of the underlying statute” by altering “the range of

conduct or the class of persons that the [Act] punishes.”   Id., quoting Schriro at 353.

       {¶27} Similarly, in this matter, we conclude that Hand did not simply issue a

procedural decision. Hand did not merely alter the range of permissible methods a court

might use to determine whether a defendant should be sentenced to mandatory

imprisonment under R.C. 2929.13(F)(6) due to prior convictions. Instead, Hand altered

the range of persons and conduct to exclude juvenile offenses from the definition of prior

convictions set forth in R.C. 2901.08. In accordance with all of the foregoing, we

conclude that the trial court abused its discretion in denying Parker’s motion to vacate his

conviction and sentence as it pertains to the mandatory sentence imposed under the notice

of prior conviction.

       {¶28}    Parker additionally asserts that because the disability element of his

conviction for having a weapon while under disability is premised upon his juvenile

adjudication, it must be vacated.

       {¶29}   R.C. 2923.13 makes it a crime for an individual to carry a firearm if that

person has been adjudicated a delinquent child for an offense of violence.       In State v.

Stewart, 8th Dist. Cuyahoga No. 105154, 2017-Ohio-2993, this court declined to interpret

Hand to negate the weapons disability resulting from a prior juvenile offense of violence.

Id. at ¶ 7, citing State v. Hudson, 7th Dist. Mahoning No. 15MA0134, 2017-Ohio-645, ¶

51 (no indication Supreme Court would extend Hand to R.C. 2923.13(A)(2)); State v.

Carnes, 1st Dist. Hamilton No. C-150752, 2016-Ohio-8019, ¶ 14 (Hand limited to
banning use of adjudication to enhance punishment).      Accord State v. McComb, 2d Dist.

Montgomery No. 26884, 2017-Ohio-4010.

       {¶30}   Judgment is reversed in part and remanded.

       It is ordered that appellant and appellee share the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, JUDGE

EILEEN A. GALLAGHER, P.J., CONCURS;
SEAN C. GALLAGHER, J., DISSENTS
WITH ATTACHED OPINION


SEAN C. GALLAGHER, J., DISSENTING:

       {¶31} I respectfully dissent.    Although the analysis provided by the majority

interpreting State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448, is cogent

and well reasoned, I believe the analysis is unnecessary in light of the procedural posture

of the case largely ignored by Parker. The question in this case focuses on the trial

court’s jurisdiction to consider Parker’s motion. Because the trial court was without

jurisdiction to consider the motion, we cannot resolve the merits of the arguments
presented — the trial court was without authority to review the merits of the claim in the

first instance. Parker has exhausted the appellate review of his conviction. Thus, the

trial court’s jurisdiction to consider the postconviction motion is paramount. In this case,

Parker had two options to invoke the trial court’s continuing jurisdiction: file a motion to

vacate a void conviction, or file a successive petition for postconviction relief.

       {¶32} Parker filed a motion to vacate a void sentence based on Hand, but Parker

has not argued, let alone demonstrated, that his conviction is void. Instead, Parker claims

his conviction was based on a statute deemed to be unconstitutional under a newly

announced Ohio Supreme Court decision. A sentence imposed under an unconstitutional

statute is not void but merely voidable.       State v. Ragland, 10th Dist. Franklin No.

13AP-451, 2014-Ohio-798, ¶ 9, citing State v. Peeks, 10th Dist. Franklin No. 05AP-1370,

2006-Ohio-6256; State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306.

As a result, the trial court correctly denied Parker’s motion.

       {¶33} The only other basis to invoke the trial court’s jurisdiction is under the

postconviction relief statutory framework. We could construe Parker’s motion as being a

successive petition for postconviction relief, but R.C. 2953.23 only permits a successive

petition for postconviction relief (1) if the defendant was unavoidably prevented from

discovering facts upon which the petition must rely, or (2) if the “United States Supreme

Court recognized a new federal or state right that applies retroactively.” (Emphasis

added.) Neither exception applies in this case.
       {¶34} Parker is relying on an Ohio Supreme Court decision, which is not a basis

for a successive petition.       State v. Reese, 2d Dist. Montgomery No. 23410,

2009-Ohio-5874, ¶ 9; State v. Hughes, 10th Dist. Franklin No. 13AP-1006,

2014-Ohio-2914, ¶ 8; State v. Kirklin, 11th Dist. Portage No. 2013-P-0085,

2014-Ohio-4301, ¶ 10. One of the reasons that the legislature may have provided an

exception for changes announced by the United States Supreme Court, and not

subsequent Ohio Supreme Court decisions, is because the defendant has an opportunity to

seek relief from the Ohio Supreme Court in his direct appeal, as Parker had

unsuccessfully attempted in this case. Parker had an opportunity to have this issue heard,

and the Ohio Supreme Court’s decision denying jurisdiction should be final. I would

affirm. Parker’s petition for postconviction relief is untimely, and no statutory exception

applies.

       {¶35} In addition to the above-noted conflict, the majority’s decision conflicts with

State v. Smith, 2d Dist. Montgomery No. 27294, 2017-Ohio-2684, on whether Hand is

retroactive.   Regardless of the differences between this case and Smith, the Second

District determined that Hand is not retroactive, and the majority concludes otherwise.

These interdistrict conflicts should be resolved. At the least, I would sua sponte certify a

conflict on both issues for the Ohio Supreme Court’s resolution.
